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UNITED STATES OF AMERICA. 



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CONSERVATIVE 



ESSAYS 



LEa^I. J^NT) POLITICA.L, 



BY 



S. S. NICHOLAS, 

OF LOUISVILLE, Kli-NTUCKT. 



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PHILADELPHIA: 
J. B. LIPPINCOTT & CO, 

18G3. 



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Entered, according to Act of Congress, in the year 1863, by 

J. B. LIPPINCOTT & CO., 

in the Clerk's OfiBee of the District Court of the United States for the Eastern District of 

Pennsylvania. 



CONTENTS. 



Introduction Page vii 

CHAPTER I. 
Powers of a State Convextiox 11 

CHAPTER II. 

No. I — PoirER OF Majorities over Constitutions 16 

No. II — Power of Majorities over Constitutions — Part of the 

Kentucky Platform 25 

CHAPTER III. 
The Higher Law 28 

CHAPTER IV. 
Manifest Destiny 38 

CHAPTER V. 

Squatter Sovereignty — Response to the Essay on Popular Sov- 
ereignty IMPUTED TO THE IIoN. R. J 47 

CHAPTER YI. 

Disunion — Extract from a Series of Numbers Published under this 
Title in the Summer and Fall of 1856. 

No. 1 56 

No. II 64 

No. Ill 70 

No. lY 76 

(iii) 



IV CONTENTS. 

CHAPTER VII. 

Disunion — Part of a Speech Delivered at a Public Dinner given to 

Governor Moreiiead, in Louisville, October, 1859. 83 

CHAPTER VIII. 

The Crisis and its Treatment — Part of a Letter to the New York 

Times, January 26, 1860 89 

CHAPTER IX. 

* 

A Plan for Obtaining our Presidents ■without the Intervention 

of Political Parties ■ 94 

CHAPTER X. 
The Right of Secession. 

No. 1 101 

No. II 110 



CHAPTER XI. 

South Carolina, Disunion, and a Mississippi Valley Confederacy. 

No. I — The Antecedents of South Carolina- 116 

No. II — South Carolina's Declaration of Independence... 120 

No. Ill — The South Carolina Declaration of Independence. 126 

Xo. IV — A Mississippi Valley Confederacy 133 



CHAPTER XII. 

Disunion and the Policy of Kentucky. 

The Position and Policy of Kentucky 145 

Restoration 1*' 

Coercion l*^* 

The Mississippi Valley Confederacy 157 



CHAPTER XIII. 

Martial Law— Part of a Pamphlet First Published in 1842, over 
THE Signature of a Kentuckian. 
No. I 



No. II 

No. Ill 

Appendix to Chapter XIII, Published June, 1861. 



160 
172 

188 



ICl 



CONTENTS. 



CHAPTER XIV. 



No. I — The Law of War 199 

2so. II — Abolitiox Proclamation', Why the President will not 

Enforce It 213 



CHAPTER XT. 

A Revieh' of the Argument of President Lincoln and Attornev- 

GENERAL BaTES, IN FaVOR OF PRESIDENTIAL PoWER 

TO Suspend the Privilege of the Writ of Habeas 
Corpus 21G 

1. The Ex-officio Power of Arrest 220 

2. The Exemption from Control 223 

3. The Constitutional Prohibitions 23G 

4. Martial Law 242 

5. The Two Wars 250 

Appendix to Chapter XY, 

A. Extracts from Calhoun's Speech on Jackson's Protest.. 267 

B. Extracts from AVebster's Speech on Jackson's Protest... 268 

C. Opinion of Chief Justice Kent 270 

D. Synopsis of Cases Referred to by Attorney-general 271 

E. Sections of the Bill before the Senate, not Passed for 

Want of Time ; 273 



CHAPTER XA'I. 

Habeas Corpus. 

No. 1 276 

No. II — A Response to Mr. Binney 289 

No. Ill — Acts of Indemnity 307 

No. IV — Comments on the Late Act of Congress, "Relating 

to Habeas Corpus," etc 311 

No. V — A Review of President Lincoln's Response to the 

Albany Meeting 319 

No. VI — Further Remarks on President Lincoln's Response 

to the Albany Meeting 327 



CHAPTER XVII. 

Confiscation and Attainder. 

No. 1 335 

No. II — The Policy of Confiscation and Emancipation 340 

No. Ill 35 1 



VI CONTENTS. 

CHAPTER XVIII. 

Law and Constitutional Reform — Jury System 361 

CHAPTER XIX. 

The New Constitution of Kentucky. 

No. 1 380 

No. II — Elective Judiciary 390 

No. Ill — Promoting Political Parties 402 

No. IV — The Executive 411 

CHAPTER XX. 

Letters on the Presidency, First Published in 1840, and Repub- 
lished, WITH Appendix, in 1859. 

No. I ■ 418 

No. II 425 

No. Ill 433 

No. IV 442 

No. V 451 

No. VI 465 

No.VII 475 

Appendix to Chapter XX. 

No. I — Letters from Roger M. Sherman and S. S. Nicholas. . 487 
No. II — Letters from William H.Crawford and Chief Jus- 
tice Marshall 496 

No. Ill 499 

No. IV — Party Despotism, Excesses, and Corruption 500 

No. V — A Plan for Obtaining our Presidents without the 

Intervention of Political Parties 504 

No. VI — Letters from Hon. B. R. Curtis, Hon. William A. 

Graham, and Hon. William C. Rives 506 

CHAPTER XXI. 

Criminal Code — Chapter XII. of an Act Codifying the Criminal 
Law of Kentucky, with Appendices thereto, and 
THE Introductory Address to the Legislature. 

No. I — Address to the Legislature of Kentucky 511 

No. II — Homicide and other Offences against the Person.. 522 

Appendix to Chapter XXI 539 



INTRODUCTION. 



The largest liberty of the citizen compatible with necessary 
restraint, or in other words, good government^ is the desideratum 
for whose achievement the wise have incessantly labored since 
the first formation of human society. This is the great insol- 
uble problem, upon which the wisdom of the whole world has 
been in vain expended. 

At the establishment of ours, there was one form of self-gov- 
ernment by the people, on a large scale, that had never been 
tested by experiment, — that is, a Representative Republic under 
a written Constitution. This it was determined should be tried. 
The written Constitution, being the great distinctive feature of 
the plan, its sanctity and continual supremacy was an obvious 
necessity to the success of the plan. All depended upon that. 

The distribution of power between the Federal and State 
Governments, with its subdivision betw^een three separate, in- 
dependent bodies of magistracy, it w^as hoped and believed, 
■would have great influence in maintaining that supremacy. 
As to its sanctity, much reliance was placed on its being the 
nation's great law, voluntarily ordained, which all would be 
educated to reverence and willing to obey, as their own fi'ee- 
will obligation of allegiance to each other and of joint fealty 
to their country. There was superadded to this natural fealty, 
sufficient of itself with enlightened patriots, the obligation of 
an oath, to be taken by all Federal and State officers, to support 
the Constitution, thereby teaching them to honor it as the 
highest, dearest object of American allegiance. Its founders 
spared no pains in inculcating upon the nation the great im- 
portance to our happiness and prosperity of permanently pre- 
serving the Constitution in inviolable sanctity. It was to stand 
in lieu of the hereditary power, the checks and balances of 

(vii) 



Vlll INTRODUCTION. 

other governments, in giving security to life, liberty, and prop- 
erty, whilst the nation was enjoying the inestimable privilege 
of self-government. In that marvellous production of human 
wisdom — in that American sermon on the mount — in that cele- 
brated farewell address, the joint production of Washington, 
Madison, Hamilton, and Jay, we are told : " The basis of our 
political system is the right of the people to make and alter 
their Constitutions, but that which at any time exists, until 
changed by an explicit and authentic act of the whole people, 
is severally ohligatory iqyon all. The very idea of the right and 
power of the people to establish government presupposes the 
duty of every individual to obey that which is established." 
* * * " It is indeed little else than a name, when the Govern- 
ment is too feeble to withstand the enterprises of faction, to 
confine each member of society tvithin the limits prescribed by the 
laws, and to maintain all in the secure and tranquil enjoyment 
of the rights of person and property." * * * a r^-^^ spirit of 
encroachment by one department upon another tends to con- 
solidate the powers of all the departments in one and thus cre- 
ates, whatever the form of government, a real despotism. If 
in the opinion of the people the distribution or modification of 
the constitutional powers be in any particular wrong, let it be 
corrected by an amendment in the way which the Constitution 
designates. But let there be no change by usurpation: for though 
this in one instance may be the instrument of good, it is the cus- 
tomary weapon by tvhich free Governments are destroyed. The 
precedent must always greatly overbalance in permanent evil any 
partial or transient benefit which the use can at any time yield." 

The fathers all taught by precept and example the sacred 
inviolability of the Constitution as the very " palladium of our 
liberties." In the better days of the Eepublic its wilful viola- 
tion would have been deemed an indelible stain upon the honor 
of the perpetrator ; a pernicious breach of patriotic duty. Not 
only every officer. State and Federal, but also every attorney- 
at-law, was taught to consider himself a sworn sentinel or guard 
over the Constitution. Every judicial officer deemed himself, 
and was esteemed by all others, as placed in command of a post 
for its protection. Any judge who ignominiously deserted that 
post, or pusillanimously evaded the performance of its duties, 



INTRODUCTION. IX 

would have been viewed with the scorn and loathing that 
attends the military commander who, from cowardice or treach- 
ery, surrenders a military post to a foreign enemy. Any judge 
who failed to do his duty in behalf of the liberty of the hum- 
blest citizen, under the miserable pretext that a military com- 
mander would not obey his judicial order, and that he did not 
desire to bring the judicial in collision with the military author- 
ity, would have been consigned to that lowest degradation into 
which an aroused national scorn could condemn him. Im- 
peachment and expulsion from office would have been the cer- 
tain doom of any judge guilty of such a treasonable betrayal 
of his trust as to decide that in time of war a military com- 
mander had the rightful power to do whatever necessity required 
for the success of the national arms, and that the commander 
was the exclusive judge of the existence and extent of such 
alleged necessity. It would but have added to the turpitude 
to make a pretext of such supposable necessity, in a community 
far away from the site of military operations, and amply pro- 
tected from all possibility of danger from hostile invasion, by 
a superabundant national force, besides one to two millions of 
loyal militia. If such ample power in the hands of the Gov- 
ernment does not entitle the people to the full, peaceable enjoy- 
ment of all the constitutionally guaranteed rights of freemen, 
including those of free speech and free press, then such Gov- 
ernment is a manifest failure, being inadequate to perform its 
obvious duty, in the most important purpose for which it was 
instituted. 

There is a widely pervading defection from the original heart- 
devoted loyalty to the Constitution. A revival of that feeling 
is greatly needed if we are to hope for a preservation of our 
liberties. It is the most urgent duty of the hour, upon every 
pati'iot, to do what he can to promote such revival. This 
republication of the following essays is made with the hope 
that they may render some small aid in that behalf. Those of 
them written many years ago, and principally devoted to the 
denunciation of the pernicious influence of political partyism 
upon our system of Government, are quite pertinent as an aid 
towards the proposed revival. For, as to that excess of party- 
ism can be clearly traced the present danger to the Union, 
2 



X INTRODUCTION. 

80 it is also the main cause of popular defection from that 
original loyalty to the Constitution, which is so indispensable 
an element in the national character, if we are to hope, on 
rational grounds, that liberty will survive this direful, most 
hateful rebellion and the unconstitutional, inhumane appli- 
ances with which its suppression is attempted. "Whilst the 
apathetic lethargy of their political leaders, pending the tram- 
pling out of the very life of the Constitution, fills every en- 
lightened patriot with despondent gloom, the manifestation by 
the great body of the people themselves of a still living, 
unconquerable affection for the Constitution, inspires a trustful 
hope in its ultimate triumph and in a no ignoble future for 
American liberty. Let us each do what he can for its preser- 
vation, and never despair for the Republic. Let us each do what 
he can, to ward off that dire doom, a military despotism, which 
the fathers have warned us against as the probable, if not neces- 
sary result, of such a war as is now waging. 



CONSERYATIVE ESSAYS. 



CHAPTER I. 

October 25, 1849. 
POWERS OF A STATE CONVENTION. 

The recent discussion of this subject has called forth the 
expression of some crude opinions, indicating the prevalence 
of a radical error of the most pernicious character. Three of 
the oldest lawyers in the convention have distinctly claimed 
for that body the power, in contradistinction to the right, to do 
anything and everything they please not prohibited by the 
Federal Constitution. 

This absolute power, thus broadly claimed, does not exist, 
and public sentiment should be kept right or set right on that 
subject. The principle affirmed is most pernicious and anti- 
republican. It caused all those bloody atrocities of that reign 
of terror which signalized the French Revolution with such 
enduring infamy. Americans should never overlook or forget 
its claims to their abhorrence. 

The members of the convention are mere representatives. 
Their power is all delegated. They have neither individually 
nor collectively any natural power over the State which needs 
to be specifically restrained, in order that it be not unlimited. 
But, being merely delegated power, it extends only so far as 
to enable the convention to fulfil the purpose of the delega- 
tion. This restriction is indispensable according to every prin- 
ciple of sound republicanism, and according to every rational 
rule of construction. 

Plenary power is delegated to a physician over his patient, 
but it is a power which, without express reservation, neces- 



12 POWERS OF A STATE CONVENTION. 

sarily implies limitation. It is a power to cure, not to kill. 
If lie wilfully use it to produce death, b.e does not merely 
abuse the power given to him, but usurps a power not given. 
He was allowed no discretion to produce death. So,- also, the 
nominally unrestricted powers of the convention are neces- 
sarily limited by an implication which appertains to the very 
purpose of its institution. Or, in other words, and more pro- 
perly to speak, under the general power to make a constitu- 
tion, they can have none but such implied powers as are neces- 
sary to that end. The object in making a constitution being 
the protection of personal rights and property, when the con- 
vention, instead of protecting, shall attempt wilfully to destroy 
any of those objects, it would be an attempt at usurpation, not 
merely an abuse of power, and its act would be void. Such 
implied limitation is inherent in all trust powers. 

Neither have they any of the administrative powers of gov- 
ernment, either executive or judicial. Because no such power 
is necessary to the establishing a form of government. They 
were appointed to amend the present or establish a new form 
of republican government, but not in any way to administer 
either government. Strictly speaking, they have not even 
legislative power, their proper duty being only to frame a gov- 
ernment, by which the State shall hereafter exercise its legis- 
lative and administrative powers. Its powers are solely organ- 
izing, not administrative. 

Suppose the members of the present convention, without 
abolishing the present Constitution, were to vote all the power 
of government into their own hands, and those of successors 
of their own appointing, thus giving themselves unlimited con- 
trol over every man's life and property. Would this be a 
legally formed government, of which we could only rid our- 
selves by insurrection or rebellion ? Not so. Because it would 
not be a mere abuse of power, but an attempt to usurp a power 
not delegated ; the mere power to form a government, by no 
possible intendment, authorizing the usurpation of all govern- 
ment into their ow^n hands and for their own benefit. As well 
might a mechanic, to whom had been entrusted the discretion- 
ary power to either repair a house, or pull it do^\1l and rebuild 
another, claim the power to keep the house for himself and 



POWERS OF A STATE CONVEXTION. 13 

drive away the owner, from whom he derived his power. But 
it may be asked, suppose, before this attempted usurpation, they 
had repealed the present Constitution ; what then ? The an- 
swer is, that society would be dissolved into its original ele- 
ments, and, after punishing the treason, would have to appoint 
new delegates to a convention to form another government. 

Suppose that without any repeal of the Constitution, they 
were to undertake to punish emancipation. Being mercifully 
minded, they are content to make a single delinquent expiate 
the crimes of all his fellows. In dispensing such expiatory 
mercy, they naturally select the highest offender, one whose 
position points him out as most worth}^ the honor of being 
made the expiatory victim. They then unanimously resolve that 
Henry Clay, being a notorious disturber of the public peace, 
a propagator of principles injurious to the well-being of so- 
ciety, and being too old for any hope of reformation — be it 
therefore ordained, as a terror to all persons in like cases 
offending, that the sheriff of Fayette county do take the said 
Henry Clay and execute him under a gallows. Wlien such an 
ordinance came to be presented to the sheriff, if he be not a 
bastard Kentuckian, he would spit upon it and trample it under 
his foot. But suppose he attempts to execute the order. It 
would fall innoxious from his hand, at the command of the 
humblest judicial officer, who could issue a writ of habeas cor- 
pus. But suppose the sheriff" forestalls this by an immediate 
execution, then he would be guilty of wilful murder, and he, 
together with all the members of the convention as his acces- 
sories, punishable with death by the law of the land. This 
no lawyer will deny. 

But, to descend from such extreme cases, suppose the con- 
vention ordain that his home or any property, which, by no 
figment, can be brought under the protection of the Federal 
Constitution, be taken from him and given to B. Would such 
an ordinance pass the title to B ? N"o intelligent man will say 
it would. Or that Mr. Clay, in lieu of all other penalty, do 
pay a fine to the State of five dollars. Could the fine be col- 
lected ? All lawyers must answer no. 

It may be taken, then, as proved, that the powers of the 
convention are not unlimited as to matters without the scope 



14 POWERS OF A STATE CONVENTION. 

of the Federal Constitution, but are necessarily limited to' ob- 
jects within the purpose of its own institution. The inquiry 
then comes, what are those objects ? We need not look far to 
find them. They are developed in the Constitution. They are 
to form a government which shall better secure the rights and 
promote the ends for which men enter into society and volun- 
tarily organize a government over themselves. Those rights 
and ends are well defined in the preamble to the Constitution 
to be " the enjoyment of the right of life, liberty, and property, 
and of pursuing happiness." With this view all conventions 
are convened in free States. Existing rights of persons and 
property are a supposed pre-existing status. Conventions are 
used merely to secure them. They are none of them derived 
by grant, express or implied, from either the conventions or 
the great body of society at large. Conventions and written 
constitutions are means used by the people, not to confer those 
rights, for each man brought them with him into society, 
but the better to secure their enjoyment, under a properly 
organized government, adequate to their protection. If a con- 
vention, under such a commission to provide for the protection 
of the right of property, were to attempt arbitrarily to abolish 
the right altogether, they would as clearly transcend their 
power, and attempt to usurp a power not given as a physician 
who wilfully kills a patient whom he has only power to heal. 
The proposition is not therefore true, is not at all tenable, that 
we hold our property by the good-will and pleasure of the pre- 
sent convention. We hold it by a right anterior to the insti- 
tution of government, a right above their reach, and which 
they cannot abolish. 

Nor is this merely true because they are only delegates, ex- 
ercising a necessarily limited power, derived from a majority 
of the people. The power of that majority is a mere delegated 
trust power, which is itself under a similar necessary limita- 
tion. When a man joins other men in a journey to California, 
it is for the purpose of mutual security of life and property. 
They have the power to rob and murder him, but it is a power 
of mere brute force, the power of the strongest, not at all de- 
rived from any authority, express or implied, derivable from 
the act of association. The great principle of civil liberty, 



POWERS OF A STATE CONVENTION. 15 

consecrated by the blood of the Eevohition, is, that " all right- 
ful government is founded on the consent of the governed." 
No man or set of men can ever be presumed voluntarily to con- 
sent to being arbitrarily robbed or murdered. 

It matters not whether the government be in the hands of 
a majority of the people, or in those of a selected or delegated 
few, no such presumption can ever be justly indulged against 
a minority of the governed. Whatever power there may be 
in the majority to rob or murder, it is only the power of the 
strongest. It has no moral basis ; it is no way derivable from 
the social compact. 

There is no such distinction in reference to this subject as 
that attempted to be made between right and power. They are, 
in this aspect, correlative and equivalent terms. The right 
gives the power ; the want of it disproves the power. So also 
the power carries with it the right. But right and expediency 
are not the equivalents of each other. The right may exist 
without expediency in its exercise. With this distinction kept 
properly in view, it may be confidently affirmed that the con- 
vention has no power over property which it has not a right 
to exercise. When they have no right, neither have they any 
power. 

As the attempt has been gravely made to distinguish between 
such right and power, the convention ought formally to nega- 
tive any such distinction. Absolute, arbitrary power in gov- 
ernment is so abhorrent to every intelligent lover of civil 
liberty, that we should heedfully discountenance anything 
which even looks like giving it a recognition among us. Ab- 
solute arbitrary power over the lives, liberty, or property of 
freemen exists nowhere in a republic, not even in the largest 
majority of the people. This principle is as sacred as truth 
and justice, and should be as enduring. The convention will 
do itself much honor by permanently engrafting the principle on 
our bill of rights. It has not been done by previous conven- 
tions only from oversight, or rather more probably from the 
belief that it was sufficiently elucidated by the other princi- 
ples contained in the Bill of Rights. But so important a prin- 
ciple should be affirmed in the most unambiguous terms, and 
not left to be made out by mere inference or reasoning. 



16 POWER OF MAJORITIES OVER CONSTITUTIONS. 



CHAPTER II. 

March 3, 1858. 
POWER OF MAJORITIES OVER CONSTITUTIONS. 

No. I. 

There are many well meaning, ignorant persons who hon- 
estly suppose that all republicanism consists in the principle that 
the majority ought to govern. From this sound principle, when 
properly understood, they deduce the non sequitur, that the 
majority has an indefeasible, natural right to govern as it 
pleases. There can be no greater heresy against the true prin- 
ciples of civil liberty than this. There is no basis of natural 
right or justice for the power of a thousand men not merely 
to govern themselves, who all think alike and have the same 
interests, but also to govern nine hundred and ninety other 
men, who think differently and have different interests. "All 
rightful government rests upon the assent of the governed." 
The right of the majority to govern rests upon the express or 
implied assent of the minority. In strict justice the power has 
no natural basis but that. If it come in any other way, it is 
the result of usurpation or force. 

It was a great step gained in behalf of the rights of man, or 
civil liberty, when it was determined that the minority ought 
never to govern. But there would have been no such gain if 
it had been settled, at the same time, that the majority has a 
right to govern according to its own unbridled discretion. AH 
government, says the sage, is hut a necessary evil. So government 
by the majority, like any other mode, is but a thing of neces- 
sity, and to be rightfully allowed only so far as necessity re- 
quires. Such is the theory of a republic, as elucidated in our 
written constitutions, withholding as they do in their Bills of 
Eights large classes of subjects from the control or power of 
majorities. A State Constitution that allowed the majority 
unrestrained power over all or most of those subjects would 
not be a republican form of government in the American 



POWER OF MAJORITIES OVER CONSTITUTIONS. IT 

sense, nor within the true meaning of the Federal Constitu- 
tion. The governing party in Church or State, whether the 
minority or majority, will always play the tyrant or oppressor 
towards its opponents. All history proves this. ISTo example 
to the contrary can be found in the history of any nation. Men, 
whether acting singlj^ or in multitudes, have ever proved them- 
selves untrustworthy of absolute power over their fellow men. 
Man is naturally intolerant, persecuting, and tyrannical in his 
disposition. Either as an hereditary sovereign or a ruling ma- 
jority, he is wholly unworthy of absolute trust. The last Ken- 
tucky convention did itself great honor by enunciatnig this 
great principle in unambiguous language, and engrafting it as 
follows upon our bill of rights : — '■'■ Absolute arbitrary poiver 
over the lives., liberty., or property of freemen exists nowhere in a 
republic — not even in the largest majority." It should be a fun- 
damental axiom with us, that when any part of our nation 
agrees to meet, through delegates, in convention for the pur- 
pose of forming a constitution, it is alwaj'S with the express 
understanding that it shall be thus republican in its principles 
and structure. The assent of no American can be imjjlied to 
any but that form of government. Without that assent, ex- 
press or implied, there will be wanting the great essential to 
all rightful government. 

The Declaration of Independence, in self-justification, has 
consecrated the sacred right of revolution : " Whenever any 
form of government becomes destructive of the inalienable 
rights of man." Under his right to overthrow a tyrannical 
government, it is attempted now to inaugurate a new dogma, 
which shall give a bare majority the right to overthrow, when 
and how they please, a constitution that destroys none of the 
inalienable rights of men. We arc told that this is a divine, 
inalienable right of the majority, which, if it could be alienated 
for a day, could be done forever; that the majority cannot so 
fetter its own power and cannot even temporarily resign its 
divine right to enslave the minority. This is a new teaching 
to the nation, who have never heretofore been taught faith in 
any such divine right of majorities. All our written constitu- 
tions, our jurisprudence, and our legislation teach an entirely 
different lesson. They teach that the rule of the bare majority 
3 



18 POAVEE, OF MAJORITIES OVER CONSTITUTIONS. 

governing should nowliere prevail except as a matter of neces- 
sity, and that there are various matters about which a bare 
majority should not be trusted with power. Prominent among 
those stands the power, by convention or otherwise, to abolish 
or amend a constitution. There is not one of our written con- 
stitutions which provides for its own amendment or revision, 
that does not put restraint upon the will of the majority in 
accomplishing an amendment or revision ; not one that does 
so restrain it in ordinary legislation, and not one that does not 
disregard it altogether as to certain sacred subjects, and among 
them the unanimity required in the verdicts of juries. The 
teaching of all gives anything rather than a divine origin or 
inalienable sanctity to the rights of majorities. Such concur- 
rence on the part of the whole nation must place the justice 
and policy of limiting the power of the majority upon an im- 
pregnable basis. He must be a bold man indeed who would 
endeavor to enforce his peculiar notions to the contraiy. 

Mr. Buchanan is that man. In his Kansas message, in order 
to extenuate the injustice of forcing the Lecompton Constitu- 
tion upon the Territory against the known will of four-fifths 
of its voters, he says the injustice will be only temporary, be- 
cause, as he says, the majority will have the immediate right 
and power to abolish this Constitution and adopt another, even 
though the Constitution itself says it shall not be altered for 
six years. This novel heresy against civil liberty is so impor- 
tant that it should be stated in Mr. Buchanan's own words. 
Here they are : 

" The will of the majority is supreme and irresistible, when 
expressed in an orderly and lawful manner. It can unmake 
constitutions at pleasure. It would be absurd to say that they 
can impose fetters on their own power which they cannot after- 
wards remove. If they could do this, they might tie their own 
hands just as well for a hundred as for ten years. 

" If, therefore, the provision for changing the Constitution 
of Kansas after the year 1864 would be constituted into a pro- 
hibition to make such change, previous to that period, it would 
be wholly unavailing. The Legislature already elected may, 
at its first session, adopt all necessary means for giving efiect to 
the popular will." 



POWER OF MAJORITIES OVER CONSTITUTIONS. 19 

Such are tlie enliglitened ideas of civil liberty officiallj^ pro- 
mulgated by a President of the United States at this late day. 
Are these his real principles, or, politician-like, are they merely 
adopted for the occasion ? " The will of the majority supreme 
and irresistible." " Can unmake constitutions at pleasure." 
"Absurd to say the majority can impose fetters on its own 
power." Why, a raw boy of eighteen 3'ears, who had expended 
only six weeks in the study of the institutions of our country, 
could teach him that written constitutions, the proud, invalu- 
able political characteristic of our nation, are a device gotten 
up with the express, if not the sole view, of imposing fetters 
upon the power of the majority. The sole use of a constitu- 
tion is to institute a restrained, restricted government. In a 
republic the majority of the people are of necessity, as well as 
right, the government, or what is the same, the controllers of 
government. It is therefore expressly for the purpose of im- 
posing fetters upon the power of the majority that written con- 
stitutions are made. It is by reason of and in consideration 
of such fetters that minorities consent to be governed by ma- 
jorities. Those fetters are the very essence of civil liberty. 
Without them there is no true civil liberty ; according to our 
American ideas there can be no true republic. In unanswer- 
able proof of this, look at all the constitutions framed since 
the Declaration of Independence. There is not one of them 
which does not withhold more numerous and far more impor- 
tant powers than it yields to the maj ority. Nor has the wis- 
dom of this sort of teaching from the founders of the Republic 
been contradicted by popular experience. Every new consti- 
tution and every revision has proved that the justice of this 
l^rinciple is continually carrying new conviction to the popular 
mind. No new constitution or revision but has imposed addi- 
tional fetters upon the legislative power, that is, upon the powder 
of the majority. The popular consciousness of the intrinsic 
justice and policy of such fetters is strikingly illustrated by 
the recent action of the political party claiming to be the most 
purely Democratic, in requiring a vote of two-thirds to carry 
the nominations of even its political conventions. If a bare 
majority be not fit, in the estimation of the Democracy, to make 
even a party nomination of candidates, how unfit, how little 



20 POWER OF MAJORITIES OVER CONSTITUTIONS. 

can it deserve to be made the arbitrary, despotic depository of 
supreme uncontrolled power over the lives, the liberties, and 
the property of freemen. As said by the Democracy of Ken- 
tucky, in the convention that framed our present Constitution, 
no such poiver exists in a republic ; no, not even in the largest ma- 
jority of the people. "Wlierever such power is found, in what- 
ever form of government, it is a mere usurpation upon natural 
right ; it is a tyranny over the natural rights of man. The citi- 
zen must be free from persecution by the majority for his reli- 
gious or political opinions, and his property free from arbitrary 
confiscation, or there is no civil liberty. To secure him against 
such persecution, the powers of government are confided to 
three distinct bodies of magistracy, and executive and judicial 
vetoes upon legislative acts are allowed, and the trial by jury 
o:uaranteed. These and various other methods are resorted to 
by our constitutions for the sole and express purpose of better 
securing the efiScacy of the many fetters which the constitu- 
tions have imposed upon the power of majorities, and which 
majorities have again and again voluntarily assisted in im- 
posing. This we are fain to believe they did from a sense of 
justice, and not from a fear that they themselves might not 
continue in the majority, or from necessity as the only mode 
of obtaining the voluntary consent of minorities. 

All our cherished constitutional guarantees for the preserva- 
tion of liberty become a mere cheat and mockery if this new 
dogma as to the power of majorities should prevail. "Wliat 
secures the citizen against persecution for his religious or po- 
litical opinions, and what guarantees him against arbitrary 
confiscation of his property ? It is the Constitution, and the 
Constitution alone, that secure him. He has heretofore been 
taught to believe, and he cherished the belief with feelings of 
the warmest reverence and afiection, that the Constitution was 
his fortress of impregnable security. It was for this he prided 
himself as an American ; this was the proud characteristic for 
which he vaunted his birthright over that of the nations of 
every other land. But now Mr. Buchanan teaches him that 
this supposed defence of impregnable security is a mere brittle 
straw between the finger and thumb of an all-powerful ma- 
jority ; that his liberties are no birthright, for which he owes 



POWER OF MAJORITIES OVER CONSTITUTIONS. 21 

thanks only to the God of freemen ; that they are the mere 
voluntary grants of his fellow-men, which are always liahle to 
be resumed by the divine right and inalienable power of the 
majority. Does a majority want to persecute a minority for 
conscience or opinion's sake or to confiscate property, the Con- 
stitution imposes a barrier. But, according to the new dogma, 
this barrier can be immediately removed, and the minority 
visited with swift vengeance. A bare majority of the Legis- 
lature can call a convention which will remove those barriers. 
This can be done even at a convened extra session, and all 
accomplished within the brief space of three months. Instead 
of holding our liberty and property by an indefeasible right, 
the birthright of freemen, we hold them as the mere beneficed 
vassals of a majority! Of that liberty and that property we 
are ever liable to be deprived, within any period of three 
months, by the capricious but " supreme and irresistible will 
of the majority?" Is this American liberty ? The personal 
rights of each freeman are the only divinely derived rights ac- 
knowledged by true republicans. To all other pretended 
divine rights, whether of monarchical or majority despots, 
they ascribe the opposite paternity. The fundamental idea 
with us is that freemen derive none of their rights from gov- 
ernment, but carried all their rights with them, when they 
agreed to place themselves under republican government. 
How absurd then the idea that the majority has an inalienable 
divine right and power to resume what it never granted ! 

Is Mr. Buchanan demented ? "What does he mean by pro- 
claiming to the nation such slavish principles ? The federal 
school in which he obtained his political teaching has always 
had ascribed to it the desire for a strong government. What 
he now proposes would give us a strong government with a 
vengeance. It greatly transcends, in irresponsible pernicious 
strength, anything ever imputed to the old Federal party. Does 
he utter his real sentiments, or is he merely playing the mod- 
ern politician, using arguments and adopting theories to suit 
the occasion ? By his undue efforts to force the Lecompton 
Constitution upon the people of Kansas, he is supposed to be 
attempting to conciliate the South and soothe its resentments 
against the isothermal intervention of his Governor "Walker. 



22 POWER OF MAJORITIES OVER CONSTITUTIONS. 

Wliat is Kansas to the South in comparison with, the detri- 
ment it would receive from inauguration of this new dogma? 
The iJiTorth has, and always will have, a majority of the States 
and of the people. If his dogma is worth anything it lays the 
Federal Constitution at the mercy of a bare majority of the 
nation; or, if he prefers it, at the mercy of a majority of the 
people of the States. Will that suit the South ? If his object 
be to prove the genuineness of his Democracy, he will find 
himself equally mistaken. It is a mistake which all old Fede- 
ralists are apt to make, who turn Democrats late in life. They 
believe that Democracy means locofocoism, agrarianism, or red- 
republicanism. The true Democrats, they who still adhere to 
the teachings of the original founders of their great party, will 
undeceive him and take care that his new dogma shall obtain 
no hold on popular favor. They will let him know that the 
genuine, old-fashioned, original Democracy of this country had 
no taint of either of those isms. They have nothing American 
about them. They are modern importations from Europe. 

He tells us that the great State of New York, as he chooses 
to designate her, made her present Constitution in direct op- 
position to the mode prescribed by her previous Constitution. 
Great she no doubt is in bulk, in population, and in wealth, 
but in any sort of moral greatness she ranks among the least 
of the States. Her politicians, with some few honorable excep- 
tions, are mere temporary expediency men. They have no 
fixed political principles. They recognize no fundamental 
principles either in the structure or administration of govern- 
ment. They seem totally to lack anything like moral training 
in politics. With them the nearest way to their object is ever 
the right way. A constitution has no sanctity with them. They 
view it as an ordinary statute, and esteem him as cleverest who 
can by any chicane most successfully evade its letter without 
regard to its true spirit and meaning. 

Precedents from such a source the nation will be slow to 
follow. K the people of that State did as he says, it only 
shows that they effected a revolution against law and principle 
by pacific means. But suppose a minority had got possession 
of the State Government under the old, and refused to recog- 
nize the new Constitution, would not the judiciary and the 



POWER OF MAJORITIES OVER CONSTITUTIONS. 23 

Federal Government have been compelled to recognize tliat 
minority as wielding the onlj^ legitimate government; and 
would not the whole aftair have resulted like the Dorr rebel- 
lion ? In what did it diftcr from the Dorr rebellion, except 
that it was countenanced by an act of the Legislature ? That 
act was worth nothing, was a mere nullity, and could give the 
proceeding no aid, if, as he says, it was contrary to the then 
Constitution. The Legislature derived all its power from that 
Constitution, and could do nothing violating its command. 
Mr. Buchanan says, in order to discriminate his dogma from 
the Dorr rebellion and the Topeka Constitution, that the " su- 
preme and irresistible will of the majority must be expressed 
in a lawful manner." How then is the speedy promised over- 
throw of the Lecompton Constitution to be brought about. 
The people themselves, he says, can't do it for the want of law- 
ful authority, and, if they can, they have already killed it by 
their vote on the fifth of January. The Kansas State Legis- 
lature can't do it because the Lecompton Constitution forbids 
its being done, and a Legislature organized under and deriving 
all its power from that instrument surely cannot do anything 
legitimately which it forbids. For a like reason the Lecomp- 
ton Constitution derives no force or sanctity from the ftict that 
it was framed under the auspices of the Territorial Legislature, 
that body not having been authorized by Congress, and having 
no legal authority so to act without the previous express direc- 
tion of Congress. 

The President might have found a more valuable precedent 
in the case of Virginia, which altered her Constitution, by a 
convention held under legislative sanction, when the Consti- 
tion did not provide any mode of revision or amendment. It 
is not remembered whether a popular vote was first taken on 
the question of having a convention, as an initiatory step to 
the call, or whether it was called by the Legislature alone. If 
the first, the proceeding was right on principle, but if the last 
it was wrong and should never have occurred. With our fixed 
American ideas as to the right of a people to remodel their 
frame of government, when a constitution contains no provi- 
sion for its revision or amendment, it impliedly admits the 
right of the people to do either in any mode that fairly ascer- 



24 POWER OF MAJORITIES OVER CONSTITUTIONS. 

tains the settled will of the majority. To ascertain that will 
through legislative action is as legitimate and more proper than 
any other. If the majority voted for a convention, then it was 
legitimately called. But it was not properly called, if it was 
done by the Legislature without such previous popular sanc- 
tion. There would, however, be no violent strain of principle 
to infer a power in the Legislature to make the call. It is an 
implication growing out of mere necessity, the Constitution 
not having provided any mode of revision. The power ex ne- 
cessitate would equally arise under a constitution which prohi- 
bited all revision or postponed it for an unreasonable length 
of time. This, however, could not be properly called a legal 
power ; it would be only an exercise of the inalienable right 
of rebellion or revolution. A change so effected would be to 
all intents a revolution, though done ever so peaceably and 
with ever so much unanimity. A change attempted upon a 
constitution in violation of a fair and reasonable provision for 
its amendment, and in pursuance of the principle of the Pres- 
ident's dogma, would be utterly illegal and authorize armed 
resistance. This would always and everywhere have been 
heretofore held for sound doctrine by constitutional lawyers, 
and there is little venture in the prediction that, so soon as the 
Lecompton Constitution is clamped upon Kansas, it will be 
upheld as sound doctrine by the unanimous voice of the South. 
It will be clearly right in contending that when a constitution 
provides a reasonable mode for its amendment, all other modes 
are prohibited, and any attempt at them is nothing but re- 
bellion. 

The President suggests in his message that Congress may, 
in the act admitting Kansas, guarantee the right of the ma- 
jority of its people to abolish the Lecompton Constitution at 
pleasure, and says he sees no objection to its being done. The 
objection is that Congress has neither right nor power so to 
amend that Constitution. All that Congress can do is to 
recognize or reject it as an entiret3^ To attempt such an 
amendment would be intervention with the affairs of the Ter- 
ritory of the most obnoxious character. It would not only 
violate law and principle, but disregard Congressional and 
party pledges. The only mode in which such a thing could 



POWER OF MAJORITIES OVER CONSTITUTIONS. 25 

be rightly done, would be by a submission of tlio Constitution 
as amended to the popular vote. That, however, will not be 
done, because then there would be no excuse for not again 
submitting the Constitution as it is to that test. 

There is a great fundamental American principle which has 
strong bearing on this Kansas controversy. It is one about 
which the nation is entirely unanimous ; one whose perfect 
justice all recognize ; and one whose sanctity is consecrated in 
the warmest sympathies and aiFections of the American heart. 
It is that principle which declares that, whenever the minority 
and the majority come in conflict in the exercise of lavrtul 
power, the majority shall and the minority shall not rule. This 
great principle should be sacred with every American, and he 
should always be ready to defend it with his blood. It espe- 
cially applies — its application is of most importance — in the 
formation of a constitution. There, beyond all other occa- 
sions, it should prevail; for there it is permanently settled 
which of the two, the majority or the minority, shall govern. 
To the violation of the principle upon so important an occa- 
sion no American should give countenance. Its proper ob- 
servance should promptly settle the Kansas controversy. The 
national feeling is so strong on this subject that it cannot be 
tampered or trifled with. 



1^0. n. 

Part of the Arraignment of the Democratic Parti/, made hy a large Convention 
of Delegates from tlie Conservative Party of Kentucky, in their Plaiform, 
adopted in Fehrunry, 1859. 

Through its party chief, and other leaders, it proclaims its 
execrable dogma, that no majority of the people can give 
permanent protection to minorities or individuals against the 
unjust aggression of party majorities by means of their great 
governmental compacts, their written constitutions. In this 
land of constitutional liberty, to this nation of freemen who 
were taught, by the great founders of the Government, that 
constitutional liberty was the only liberty worth the having, 
4 



26 POWER OF MAJORITIES OVER CONSTITUTIONS. 

the party proclaims, througli the official messages of its Presi- 
dent, this new dogma, destructive of the stability and value 
of all constitutions. It proclaims, through him, the doctrine 
of the unrestrainable power of temporary/ party majorities. To 
prove that they cannot be restrained to even a fair and 
reasonable mode prescribed by a constitution itself for its 
own alteration, President Buchanan says : " The will of the 
majority is su]3reme and irresistible. It can unmake con- 
stitutions at pleasure." He argues at length to prove that 
majorities cannot be confined to any particular mode, how- 
ever reasonable, in altering, revoking, or re-making consti- 
tutions. 

Thus the modern progressive Democracy, through its Presi- 
dent and other leaders, openly avows this new creed trea- 
sonable to the cause of civil liberty, of which it has long 
been suspected, denying all sanctity or value to constitu- 
tions, and viewing them with disfavor, as unnecessary tem- 
porary restraints upon the divine inalienable rights of majori- 
ties. This part}^ finds no cause for veneration and respect in 
the fact that our constitutions are the great organic compacts 
and covenants of the people with each other, when alone 
they are acting in their real sovereign capacity; that they 
are the great measure of right between majorities and minori- 
ties ; that they are the only restraints against despotic gov- 
ernment that is upon the power of a party majority; and 
that they afford its only security to individuals or minorities 
in the enjoyment of private property, freedom of conscience, 
freedom of speech, freedom of the press, and all other privi- 
leges which are the birth-rights of American freemen, and 
which are not the mere concessions of majorities. The citi- 
zen must be secure against persecution by the majority for 
his religious or political opinions, and secure in the enjoy- 
ment of his right of private property, or there is no civil 
liberty. He cannot be so secured but by inviolable written 
constitutions. This party teaches that our nation, ever since 
its existence, has been absurdly engaged in the repetition 
of futile efforts to secure civil liberty by means of inviolable 



POWER OF MAJORITIES OVER CONSTITUTIONS. 27 

constitutions, placed beyond tlie immediate reach of tlie 
heated vindictive passions of temporary majorities. For con- 
stitutional liberty we are invited to substitute the arbitrary 
government of the immaculate Democracy. The indepen- 
dence and equality of the States, the compromises of the 
Federal Constitution, with its protection to local rights and 
institutions, are to be subjected to the will of the majority 
either of the people or of the States, or of both. The only 
barrier against the consolidation of all power in the Federal 
Government is to be yielded up to this new dogma, the inalien- 
able, irresistible divine right of the majority. 



28 THE HIGHEE LAW. 



CHAPTER III. 

December 11, 1861. 
THE HIGHER LAW. 

An unbridled Democracy was not the government devised 
for 118 by tlie fathers of the Republic. They have left abun- 
dant evidence to prove that they thought the unrestricted will 
of the majority was among the worst forms of government. 
They launched their experiment with the fond hope, if not 
firm belief, that they had provided ample checks and balances 
to preserve the equipoise between power and liberty, and to 
prevent the majority from persecuting the minority, and also 
to prevent parties from aggrandizing themselves by monopoly 
of the powers of government. But unfortunately the practical 
working of the government has proved the hopes to have been 
delusive that were based upon most of these supposed checks. 
The independent Presidency, Senate, House of Representa- 
tives, and State Grovernments, from which so much was ex- 
pected as a mutual counterpoise, have by party machination 
been all amalgamated together in aid of unstinted party power. 
Of all the intended checks the one principally relied on was 
the efficacy of a written constitution, which has also proved 
the most durable in practice, being the only one left us after 
seventy years of party strifes. What is the value of this last 
remaining check remains to be seen, if its insufficiency is not 
already proved. 

This being the principal reliance, the fathers were no way 
negligent in inculcating the inviolable sanctity of the Consti- 
tution. llTot content with a presumable popular appreciation 
of the necessity for obedience to law under a government of 
law, they caused the whole nation to declare : " We, the peo- 
ple of the United States, do declare that this Constitution shall 
be the supreme law of the land." Still not content with the 
presumable willing obedience which every good citizen would 



THE HIGHER LAW. 29 

pay to such an august command, tliey took care that nearly 
every Federal and State official, before assuming office, should 
be bound by solemn oath to maintain the Constitution in that, 
its asserted supremacy. 

The national apathy, in the presence of the portentous re- 
bellion against the Constitution now going on, is filling our 
best men with despair. Appalled by the magnitude of the 
danger, they passively trust to the delusive hope, that, after 
the present storm, there will be a revival of the former reve- 
rential love for the Constitution, and that it will be recon- 
stucted into its needful benignant supremacy. After the 
degrading, desecrating destruction now threatened, the diffi- 
culty of reconstruction will be immense, even if practicable. 
The difficulty may be aptly compared to the impossibility of 
restoring a violated chastity. The inviolable sanctity of the 
Constitution should be like that of virgin purity. It is equally 
required by both, to secure that respect so necessary to pure, 
perfect love. Such love for the Constitution is indispensable 
to its supremacy, for without that popular support we have no 
efficient conservative principle in our frame of government. 
Such love is its very life-giving principle. Without it, civil 
liberty has no protection and can have no abiding place 
among us. 

Instead of anything being done to keep alive that former 
love and fealty, which is the only possibility for re-establishing 
the Constitution, our public men, with few exceptions, are all 
devoting their talents to the inculcation of novel theories of 
government, new dogmas which, if acquiesced in by the nation, 
must permanently destroy every vestige of civil liberty. 

Prominent among these dogmas is one probably embracing 
all the rest — at any rate,' sufficient of itself to subvert all 
semblance of a well ordered, well secured civil liberty, as it 
strikes at and supersedes the very foundation of all permanent 
constitutional government. It is the dogma of " the higher 
law." 

When this dogma was first enunciated in the Senate, it met 
such annihilating censure that its putative fother, Mr. Seward, 
shrank from the imputed paternity of the foul thing and said, 
with probable sincerity, that he had been misreported and 



30 THE HIGH EE LAAV. 

misunderstood. According to present recollection, lie earn- 
estly denied having advocated the idea of there being any law 
paramount to the Constitution. Yet the existence for practi- 
cal use of such higher law is now being habitually advocated 
in and out of Congress, and is receiving the imposing sanction 
of the President, the Cabinet, and military commanders. That 
law is now being daily enforced in disregard of the constitu- 
tionally guaranteed liberties of the nation, causing the present 
prostration, and threatening the permanent destruction of the 
Constitution itself. 

It is full time that this higher law, with its vast proportions, 
should be carefully looked into, to see what it is, whence it 
comes, by whom ordained, and who its rightful expositors and 
administrators. 

Its advocates rather shrink from calling it by that original 
name, first given by its putative father. The damaging rebuke 
received at its first enunciation has induced its patrons to seek 
for it a more propitious name, one at least which has not yet 
incurred so much of poj)ular odium and obloquy. It is vari- 
ously designated as the law of necessity — as the law of war — 
the law of self-preservation. But under whatever name, it is 
now claimed to be a law paramount to the Constitution, and 
may well be called the higher law — the supreme law of the 
land. As such it is now being enforced upon the nation. 

Whence this higher law ? It comes not from the Constitu- 
tion, being repugnant to its every letter, its whole spirit, its 
entire theory. The Constitution proclaims itself to be the 
highest law and declares that whatever governmental power 
is not therein granted " is reserved to the States respectfully 
or to the people." We all know that neither the States nor 
the people have ever created, or delegated power to create, 
this higher law. There is no other conceivable source from 
which such power or law can be rightfully derived. The na- 
tion has never been so uniformly unanimous, or at least nearly 
unanimous, upon any political question as upon the principle 
that in this country there can be no rightful governmental 
power unless derived from the States or the people. Whence, 
then, this higher law, which presumes to annul the solemn 
national fiat proclaiming the Constitution as the highest law of 



THE niGHEE LAW. 31 

tlie land ? Let its advocates speak ; let them tell us whence it 
is derived. As it obviously cannot have a human origin, com- 
ing neither from the people nor the States, it must be derived 
from some superhuman source. That being so, then does it 
come from above or from heloiv ? Let its advocates speak ; let 
them tell us ; let them prove to us from which. 

When first announced in the Senate by its putative father, 
something he said induced the belief that he tried to derive it 
from above. Then came the memorable rebuke to any such 
arrogant attempt. Henry Clay, after bowing his tall form and 
lowering his voice, whilst humbly recognizing the supreme 
power of the great ruler above, slowly straightened himself to 
his full stature, and, turning to Mr. Seward, with flashing eye 
and the most emphatic emphasis of his sonorous voice, said : 
"But when and by whom did the great ruler send this law on 
earth ? When and where was the Senator from I^ew York 
made his vicegerent for its utterence and exposition ? I de- 
mand an exldbition of his crcdeMtials." 

Mr. Seward never produced those credentials — they still 
remain to be produced by him or his disciples. In their ab- 
sence we may well conclude that the law is neither of divine 
nor human origin, but by necessary inference nmst have come 
from below. It is for the nation to say whether our all-glori- 
ous Constitution shall be upset by any devil-derived law. As 
his Satanic Majesty is the reputed father of all evil on earth, 
we may well concede to him the exclusive honor of the pater- 
nity of this higher law. Let Mr. Seward and his disciples ac- 
knowledge themselves his Majesty's representatives, or cease 
their effort to substitute this infernal engine of tyranny in lieu 
of that Constitution, whose supremacy they have all sworn to 
support — in whose abiding supremacy our liberty must "for- 
ever live or know no life." So, also, of their law of necessity 
— their law of war — their martial law — their silent leges inter 
arma — Xhoiv salus populi suprema lex — their vox populi., vox dei 
— their mob law — their lynch law — their committee-of public- 
safety law — they are each and all part and parcel of this higher 
law, or, more accurately to speak, they are this very law under 
difterent names. Like it, they are each parcel of the imme- 
morial tyrant's plea for crushing liberty. As said by a Con- 



32 THEHIGHERLAW. 

gressional committee twenty years ago, " when tlie nation is 
prepared to yield to siicb. a tyrant's plea it will be fit only to 
become tlie tyrant's slaves." 

Martial law, State necessity, liigber law, are all attempted sub- 
stitutes for that temporary dictatorship which was a part of the 
Roman Constitution. It was entirely under the control of an 
hereditary Senate, worked in its interests, and may have served 
to sustain its power over the people, but ultimately proved too 
strong for both Senate and people, consigning both to ignomin- 
ious servitude under the tyranny of military despotism. Does 
the virus of such arbitrary military power lurk anyr^here in 
our political system ? Even President Lincoln and Attornej^- 
general Bates have the grace fully to admit that it does not. 
In their arguments to prove Presidential power to suspend the 
privilege of the writ of habeas corpus, they say : 

" In England it has grown into an axiom, that the Parlia- 
ment is omnipotent. * * * In the formation of our National 
Government our fathers seem to have been actuated by special 
dread of the unity of poiver, and preferred taking the risk of 
leaving some good undone for lack of 'power in the agent, rather 
than arm any governmental official with such powers for evil, 
as are implied in the dictatorial charge, " to see that no damage 
comes to the Commonwealth." 

That " dictatorial charge" was the very form of words with 
which the Roman Senate always appointed and empowered a 
dictator under their constitution. With this example full in 
view, with perfect knowledge and mature consideration of 
every benefit that could ensue from the existence of such power, 
during possible exigencies of great State necessity, the framers 
of the Constitution determined to forego all such benefit rather 
than risk the exercise of "such powers for evil." Hence, as 
Messrs. Lincoln and Bates say, the nation expressly refused "to 
delegate all its powers to this Government, in any or all its 
departments." The philosophic statesman Burke went still 
further and denied that even a nation could rightfully create 
arbitrary government. He said all dominion of man over man 
being the result of divine disposition, and arbitrary power in 
man over man being contrary to divine beneficence, " if a peo- 
ple should be mad enough to make an express compact releas- 



T II E II I G U E R L A W. 33 

ing their magistrate from his duty, and should declare fheir 
lives, their liberty, and their property dependent upon, not 
rules and laws, but his mere capricious will, that covenant 
would be void." 

But the hiofher law advocates insist that the nation had no 
right to withhold any power from the government it created ; 
that it had neither right nor power to restrict its own agents. 
In other words, they deny the nation's power of self-govern- 
ment; — for denying the right to withhold power from its 
officers, in its great organic law, is eifectually to every intent 
denying it the power of self-government. It leaves the nation 
the only alternative of creating a government that is or may 
become despotic, with no choice of any other ; which is pure 
negation of the right of self-government. Whence this nega- 
tion to freemen of the rightful power of self-government ? 
Surely, according to our American ideas, according to all the 
teachings of our fathers, it does not come from above; — full 
surely it can only come from below. They claim that necessity 
is the substratum of their higher law" — that necessity is a law 
unto itself, to be expounded and administered only by its own 
hierophants, acknowledging no subordination to heaven, or to 
hell, or to the Constitution, or to the nation. What then is 
this thing called necessity, which being no definable, compre- 
hensible law itself, which having no law, is still the substratum, 
the foundation of the highest law of the land ? What can it 
be but the satanic thirst for revengeful persecution by a major- 
ity against a minority ? Who are the exponents of this law — 
who its enforcers ? Certainly not our government officials ; 
for they are all sworn to support the supremacy of the Consti- 
tution over that and all other pretended law. Whenever they 
forget the obligations of that oath, by lending their aid in favor 
of this thing necessity, or any other power adverse to the Con- 
stitution, they not only commit perjury, but that foulest of all 
treasons against a Republic — that is, treason against its Con- 
stitution. For as the preservation of its liberty is the most 
important, the most vital interest of a Republic and the Con- 
stitution is the sacred depository and conservatory of its liber- 
ties, the destruction of its Constitution is the worst injury that 
a Republic can possibly receive. There is not, there never has 
5 



34 THE HIGHER LAW. 

beeh, there never can be any State necessity in a Republic 
near so great as that of preserving its Constitution from lawless 
violence. It is there, in its Constitution, that are garnered up 
all the sacred principles of liberty, all the enlightened affec- 
tions of freemen for their government. Whoever lays his 
sacrilegious destroying hand on that great sanctuary of free- 
dom, is guilty of the worst, the foulest crime that can be com- 
mitted against a Republic. It is to constitutional liherty alone 
that an enlightened freeman can pay the heart-warm devotion 
of an unstinted loyalty. It is to that, and to that alone, among 
human powers and institutions, he can yield a proud, manly, 
willing, devotional obedience. It is by that he is bound in 
devoted, patriotic affection to his country. Hence its destruc- 
tion, or even the dishonoring disregard of the Constitution, 
can never be a rightful or admissible means in the attainment 
of any supposed national benefit. The end to be attained can 
never possibly be worth such means. 

Such being the needful, beneficial sanctity of the Constitution 
any alleged necessity for violating the Constitution should be 
immediate, imperative, and indisputable. This cannot be pre- 
dicated of any existing necessity. That the present unpro- 
voked, infamous rebellion is hard to be put down, may be 
conceded, and cannot fairly be denied. But that the existence 
of the people of the loyal States, or of their Government, is 
in any sort of peril, is what no truthful man will considerately 
afiirm. "We are, in round numbers, twenty millions against 
five. When we consider our greater condensation of popula- 
tion, our greater facility of railroad and water transportation, 
our exclusive naval power, our greater pecuniary and other 
resources for the equipment and maintenance of armies, this 
disparity of mere numbers should be doubled in estimating the 
comparative military strength of the two sections, and, upon 
a very low estimate, the ratio fixed at the rate of eight men to 
one. It is merely preposterous to surmise that the eight can 
be conquered by the one, though the one in a defensive war 
may long keep the eight at bay. Yet, the very life principle 
of the law of necessity, if such law there be, and if it have 
any rational basis, is, that the danger of our irretrievable ruin 
shall be immediate, imperative, indisputable. "What will 



T H E H I G 11 E R L A W. 35 

merely expedite or facilitate putting down the rebellion, falls 
far short of the conditions of the higher law problem of 
necessity. 

The production may be safely challenged of a single instance 
from all history, where necessity required the prostration of 
the organic law, the Constitution of a Republic, to ensure its 
safety, or where one ever was saved by resort to such means. 
Our own national experience on this subject is large and 
instructive. If ever there was an occasion justifying and call- 
ing for the use of arbitrary military power in necessary self- 
preservation, it must have been during our long Revolutionary 
war, when a feeble people were struggling for very existence 
against a powerful enemy abroad and tens of thousands of 
traitor tories at home. Yet the struggle was triumphantly 
carried through without resort to any such tyrannical expedient. 
This, too, though the then j)eril and necessity were certainly 
tenfold, probably an hundredfold what they now are. The 
bravest, the most sanguine of that day must have doubted the 
success of the Eevolution ; whereas there is not a single intel- 
ligent man of the North, however timid, who entertains the 
slightest fear that the North will be conquered by the South. 
This is a war of the vast majority to conquer the obedience of 
a comparatively feeble minority. The necessity alluded to can 
never arise in such a war in behalf of such a majority. It 
never can be a necessity such as to justify the interposition of 
the alleged law of self-preservation. The physical means of 
self-preservation are superabundant, without any such inter- 
vention . 

The Virginia Constitution, adopted amidst the perils of the 
Revolution, when its authors must have felt that they were 
acting with halters round their necks, declares that " the priv- 
ilege of the wi'it of habeas corpus shall not in any case be sus- 
pended." So also during the last war with England, when, 
after the battle of Waterloo, she was left free to direct her 
whole tremendous militar}^ strength against this country, Pres- 
ident Madison resorted to no aid from the exercise of arbi- 
trary powers. This, too, though disloyalty was rife everywhere 
throughout the land ; the Federal press and leaders habitually 
denouncing the war and the administration ; Long Island Sound 



36 THE HIGHER LAW. 

studded niglitly with blue light signals to the British fleet ; 
nearly all New England disloyal, rendering the Government 
no efficient aid, but meeting in convention to inaugurate threat- 
ened secession. This attempt at secession was the original bad 
example for all the pernicious heresy and treasonable acts of 
secession which have since followed. If it had been carried 
out, and not stopped as it was by the peace, it would have been 
as much worse a rebellion, as much worse a violation of patriot- 
ism, than the present rebelhon, as is an army mutiny in the pres- 
ence of apowerful enemy more blameworthy than mutiny in time 
of peace. But all this foreign and domestic danger did not 
shake President Madison's fealty to the Constitution. He did 
nothing, he attempted nothing beyond the scope of his plain 
legitimate powers. In the presence of all this disproof, and in 
the absence of any example to prove the present state of things 
as an existing overruling necessity for trampling on the Con- 
stitution, all such assumption must sink into the category of 
insincere, unfounded pretext. 

Enormous as are the many violations of the Constitution 
already perpetrated, their whole result, in present or prospect- 
ive evil, probably does not exceed what will ensue, if the Pres- 
ident adopts the policy in relation to slaves urged upon him 
by the higher-law men, under the lame pretext of necessity. 

Our ultra politicians will be very unwise to measure the feel- 
ino-s of other men on such a subject by their own. A wise 
man said long ago, that a religious fanatic was the most blood- 
thirsty, remorseless animal that God ever sent on earth ; that 
the ravening rage of a tiger could be surfeited, but there was 
no surfeiting the appetite for blood of a religious fanatic, for 
like all bad human passions it increased with indulgence. The 
wise man was wrong. The religious fanatic is only the proto- 
type of his full brother, the political fanatic. I^ot the Tor- 
quamadas of the Inquisition, nor the Ferdinands of Spain^ nor 
the Eings of France and England, ever perpetrated greater 
bloody atrocities in the name of religion, than did the political 
fanatics of the French revolution in the name of liberty. They 
were the greatest poltroons of the convention who inflicted 
the reign of terror on France, and this fact may serve to indi- 
cate those of our politicians who will be most apt to try to 



T n E H I G II E R L A W. 87 

establisli another like reign of terror in this country — a reign 
of terror involving the probable extermination of the larger 
part of the negro population, instituted by political fanatics in 
the name of negro philanthropy. 

The most obvious result of the proposed policy is the inciting 
of slave insurrection, accompanied by the mutual destruction 
of a large part of both the white and black population of eleven 
States, together with the destruction of all destructible prop- 
erty. Is this a legitimate means for putting down even this 
rebellion, detestable as it is ? Can Congress use such means 
for that purpose ? Can the wanton massacre of millions of our 
0"\vn people ever be a legitimate means for putting down a 
rebellion ? If not, then neither can its agents, the President 
and the commanders of our armies, use such means. Their 
powers for suppressing the rebellion, being all derived from 
Congress, are necessarily confined to such as it has given and 
can constitutionally give. 

During General Taylor's march into Mexico, the Camanche 
Indians made a destructive raid into the country, and the 
Mexicans applied to him for protection, alleging they could not 
protect themselves because their young men were all with the 
Mexican Army. Now here was an efficient aid to the General 
in those Indians, not even of his own seeking. How did he 
act ? Obeying the instincts of the manly heart of a Christian 
soldier, he not only rejected such aid against even the foreign 
enemy, but actually caused the marauders to be driven ofi*. 
What a contrast between the magnanimous soldier and some 
of our cold-blooded politicians. 

To what good end suppress the rebellion of the eleven States, 
by means which will desolate both their population and their 
property ? What will they be worth to the other States when 
thus destroyed ? They would be worthless, besides weakening 
the nation by the presentation to foreign enemies of thousands 
of miles of assailable defenceless frontier. In the loss of mil- 
lions of our population, we shall destroy billions of national 
wealth, together with the most magnificent market the world 
aflbrds for the products of i^orthern industry. 



MANIFEST DESTINY. 



CHAPTER IV. 

January 19, 1858. 
MANIFEST DESTINY. 

The following is tlie outline of a proposed amendment of 
the Federal Constitution : 

" Congress may permit the secession of a State or States 
from the Union, but shall not admit any new State into the 
Union composed in whole or in part of what is now foreign 
territory; nor shall there be any future acquisition of territory." 

This amendment contemplates the relieving us from excess 
of territory and population, and also a reversal of the policy 
of acquisition so recklessly pursued during the last twelve 
years. 

During that period annexation and conquest have added a 
third to our territorial bulk. This addition was deemed un- 
necessary and unwise by a large part, if not a majority, of the 
intelligent men of the nation. Among them were those saga- 
cious, practical statesmen, Henry Clay and Martin Van Buren, 
who, whilst the rival chiefs of the two great political parties, 
concurred in promulgating the doctrine that we already had 
too much territory even before the annexation of Texas. That 
annexation, which induced the acquisition of California, proba- 
bly never did receive the deliberate approval of a majority of 
the nation. It was the result of one of our party strifes for 
the Presidency. It was the coerced price paid by the Demo- 
cratic party for the support of certain Southern States. The 
controlling motive with those States w^as the expected increase 
of Southern political power. This hope has been frustrated 
by the annexation of California, which has made the free 
State preponderance more decided than it was before. 

This result, together with that of the experiment on Kansas, 
proves the futility of all efforts on the part of the weaker 



MANIFESTDESTINY. 39 

section to increase its comparative strength to the prejudice 
of the stronger, by any process of mere legislation or annexa- 
tion. The South is in a doomed minority, and it is mere folly 
to hope or attempt to extricate it from that position by ex- 
pansion. The example of California sufficiently proves that, 
under the influence of the " popular sovereignty principle," 
any extension into ]\Iexico will but add more free States. 

As to the annexation of Cuba, there is small chance for that, 
even if it were certainly desirable for the South itself. South- 
ern men diifer among themselves as to that. Some of them 
think emigration has been the great bane of the older Southern 
States, and that its annexation would immediately cause a 
drain of wealth and labor from those States, which no col- 
lateral or political benefits could compensate. Be that as it 
may, an effort at the annexation is not worth making, in view 
of the difficulty of purchasing from Spain, the impracticability 
of obtaining a two-thirds vote of the Senate for a treaty pur- 
chase, and the almost impossibility of a direct or indirect con- 
quest of the island. Without the consent of England and 
France, its conquest is next to an impossibility. Will no one 
poll the Senate, and thereby prove to the President and the 
South that its annexation by treaty is also an impossibility ? 

If wrong in all this, still the Northern States have ready at 
hand the facile means of indemnity for three such acquisitions 
as that of Cuba by the annexation of the British colonies on 
our Northern borders. It is understood that English policy 
in reference to those colonies has undero-one a total chano-e. 
England no longer means to attempt to hold them by force. 
She has intimated her willingness to emancipate them, when- 
ever they shall, with anything like unanimity, desire the sepa- 
ration. That unanimity will come of itself so soon as the con- 
trolling influence of wealth and intelligence is in the natives 
of the colonies. Under the active enticing influence of the 
Northern States, it would come very soon. Then, under the 
example set by the South in the case of Texas, it will require 
a bare majority vote in each house of Congress to annex five 
or six new free States. It is an unequal, hopeless game the 
South will have to play in an effort toward producing anything 
like an equality in numbers between the free and slave States. 



40 MANIFESTDESTINY. 

Attempt to subdivide Texas, and you will be met by a sub- 
division of California, Oregon, Utah, and Nebraska. 

In case of a separation of the Union upon the slave line, the 
annexation of the British colonies is a mode of indemnity to 
which the North would resort, with the probable connivance 
of England. This would secure to the North a vast prepon- 
derance of strength over the South — so much so, that, in con- 
nection with the want of ability in the South to create a com- 
mercial or naval marine, the latter would be, and irreclaimably 
remain, a feeble and tributary power. The tribute which 
Southern agriculture is now supposed to pay to Northern 
capital and shipping would still have to be paid in larger 
amount and more aggravating form. The South would be 
compelled to buy naval protection somewhere. For obvious 
reasons, the North would underbid the balance of the world. 
Union with the South is worth greatly more to the North than 
annexation of the British provinces, even with that result. 
The North will not therefore seek such annexation at the cost 
of disunion, unless it becomes convinced that the South is 
seeking annexation as a mere preparative to secession, or as a 
means of sectional political aggrandizement. 

All things considered, the South can well afford to strike a 
bargain with the North against any further acquisition of 
territory. Both North and South can afford to view the pro- 
position nationally, without any sectional bias. It is high time 
for all our statesmen to give up sectional agitation, and care 
for the permanent welfare of our whole nation as durably one 
and indivisible. 

It cannot be rash to assert that we now have too much terri- 
tory, when such men as Mr. Clay and Mr.Yan Buren, with 
the concurrence of at least a moiety of the national intelli- 
gence, thought so even before the acquisition of Texas. Our 
territory doubles in extent the whole of the following coun- 
tries, which contain a population of two hundred millions : 
Great Britain, Ireland, France, Spain, Portugal, Italy, Switzer- 
land, Germany, Austria, Turkey in Europe, Poland, Prussia, 
Belgium, Holland, Denmark, Norway, and Sweden. Those 
countries embrace only a million and a half of square miles, 
whilst we have upwards of three millions. Can any sane man 



MANIFESTDESTINY. 41 

believe that all those countries, even if they had but one 
language and religion, could be properly governed by any one 
government? Yet we have among us men, other-wise sane, 
who profess to believe that our system may advantageously 
embrace an indefinite extent of population and territory. This 
is mere indefinite nonsense. Considerate men arc doubting 
whether our system is adapted to the proper government of 
even a moderate amount of dense population, like that of 
France, for instance. They say that the result of our experi- 
ment thus far gives no guarantee for permanent well-doing. 
They point to the experience of last year, when we had vigil- 
ance committees ruling California with Wnch law, the north- 
west territories governed by martial law, Utah ruled b}" priest 
despotism, and civil war in Kansas. They point to those 
unpunished, unpreventable mob violences that have disgraced 
every large city in the Union. They point to the open disre- 
gard and unpunished violations of our neutrality laws. They 
point to the rapid demoralization, through party excesses, of 
every department of our Federal, State, and Municipal Gov- 
ernments, They point to what fraud and violence have already 
accomplished upon the modern ballot-box, rendering it the 
foulest of corrupt things. But, above all, they point to the 
decay of nationality and patriotism among us, ascribable 
mainly to the too great extent and the diversified sectional 
interests of our country. They may not be altogether right 
in their foreboding fears, but they are certainly so far right 
as to prevent a blind, unreasoning confidence in the efficacy 
of our system for properly governing a very large population. 
If such be the justifiable doubts, from our experiment with a 
sparse population and a large majority of the voters property- 
holders, all must fear the test of a large, dense population, 
with non-property-holders for a majority of the voters. 

It would seem that all rational men ouo;ht to ag-ree in the 
opinion that we have vastly more territoiy than we can prop- 
erly govern, that a stop should be put to further acquisition, 
and indeed that we should be looking ahead as to the mode 
of getting rid of our superabundance. But there are some 
among us who, compelled to admit that we have more than 
enough for our own use, still contend that we must go on eon- 
6 



42 MANIFESTDESTINY. 

quering and acquiring for the sake of other people. These are 
the apostles of a new national policy, which tliej call " mani- 
fest destiny," who wish to use our nation as the armed propa- 
gandist of our political institutions. These soi disant philan- 
thropists encourage no enterprize for the amelioration of other 
people, unless there is a little gainful robbery connected with 
it to awaken their benevolence. Some who have had the honor 
of passing through high official position, whilst ashamed to 
justify the petty larceny of private piratical expeditions, shame- 
lessly avow their advocacy of grand national robberies, be- 
cause, as they say, that it is " manifest destiny." "What though 
this new policy sinks us from our proud position into that of 
a nation of pirates and robbers, still we must expand because 
it is "manifest destiny." This is to be the outcome of the 
christianizing influence of our vaunted religion, of our supe- 
rior civilization, of the progress of our model Republic toward 
human perfection — we are to become a nation of pirates and 
robbers, merely because it is "manifest destiny." Like the 
robber hordes of the North, who desolated Western Europe 
during the Dark Ages, we are to cast ourselves upon and rob 
all the defenceless people of this continent, because that is 
"manifest destiny." The founders of the Republic gave us 
as a motto for our national guidance, "Equal and exact justice 
to all nations, entangling alliances with none." Under a more 
or less rigid observance of this sacred precept, at least without 
the perpetration of any great national crime, we have, with un- 
precedented rapidity, attained a position of strength, prosperity, 
and respectability that renders us the envy and admiration of 
the world. But this is not progressing fast enough ; we must, 
at the bidding of these apostles of the " manifest destiny," 
abandon the slow pursuits of honest industry, and take to rob- 
bing. Mohammedan-like, we must, scimetar in hand, propa- 
gate our political Koran. A propensity to rob and an insatia- 
ble greed for land are the great vice of our race. If we have 
attained a civilization worth propagating, it should be shown 
in the restraint, not the indulgence of this vice. A man who 
freely indulges his appetites will always pretend to believe that 
he is pursuing his "manifest destiny" in becoming a glutton 
and a drunkard. 



M A N I F E S T D E S T I X Y. 43 

Under the new policy we should progress downwards to 
national infamy, followed by the scorn and abhorrence of all 
Christendom. We should exchange peace and prosperity for 
never-ending strife and war. The result of Russia's recent 
most benevolent, disinterested efforts to civilize the Turks is 
a teaching example of how far we would be permitted with 
impunity to propagate civilization by the sword. With equal 
disinterested benevolence, England has for centuries been pro- 
pagating civilization by the sword over India. The outcome 
of that is the recent Sepoy mutinies. Her only perceivable 
gain for all her robbery and oppression of those nations has 
been the constant vent afforded for the restless, disturbmg 
elements of her surplus population. The best mode for indi- 
viduals or nations to improve their neighbors is by the force 
of good example, not by obtrusive interference with the con- 
cerns of others. Disinterested generosity is appreciated and 
reciprocated in private life ; but such generosity, or any sort 
of self-sacrifice, is wholly unkno-wn among nations in their in- 
tercourse with each other. The example of such magnanimity 
has never yet been given by any nation ; and, if it had been, 
would never have found an imitator. To overlook or neglect 
the peculiar interest of our country, for the improvement of 
the whole human race, is to forget the higher duty of patriot- 
ism in Quixotic pursuit of a visionary phantom of Utopian 
philanthropy. For a father to disinherit his own children, and 
bequeath the whole of a small fortune for the general amelio- 
ration of mankind, would be no grosser folly than for a nation 
to neglect its own interests and devote its energies to the gene- 
ral improvement of the whole human race. 

^N^othing need be said as to what is necessary for maintain- 
ing our national independence. Our present strength and 
geographical position place that beyond hazard. We need no 
increase of strength for self-preseiwation. 

Next to independence, according to our ideas, the greatest 
boon to a nation is civil liberty. Longevity to that is our great- 
est if not our only national solicitude. That is the great prob- 
lem yet to be solved. Its successful solution involves not 
merely our permanent happiness, but also the greatest benefit 
which the nation can in any way confer on the balance of the 



44 MANIFEST DESTINY. 

world. The guiding intelligence of tlie day should be invoked 
to its serious consideration. That is the high national concern 
which the founders of the Republic told us always to keep in 
view in the pursuit of our proper destiny. 

The most prominent great danger in our way is the present 
excess of territory and future excess of population. When a 
nation has enough of territory, with sufficient diversity of soil 
and climate to afford profitable employment to its people, for 
an indefinite period, it needs no more. "WTien a nation has 
sufficient population to secure its independence, it needs no 
more. Any more of either territory or population is an inju- 
rious excess. Such excess but adds that much to the difficulty 
of good government. This, which is true as to every nation, 
is especially true as to ours, wishing as it does to enjoy in per- 
petuity the blessings of a republic. The practicability of a 
republican government over a large country of dense popula- 
tion is that about which every intelligent man has more or less 
of doubt. The commonest prudence will dictate the neces- 
sity of postponing the experiment as long as possible. But, 
apart from that, excess of population is a great grievance. It 
is the greatest grievance under which the nations of Europe 
are now laboring. Notwithstanding the great amount and 
variety of employment which England affords to labor, and 
her constant depletion by emigration, about a fifth of her popu- 
lation are paupers. Ireland is said never to have worn an 
aspect of such apparent prosperity as since the famine, the 
cholera, and emigration have depleted her of two millions of 
her population. A majority of the people of most European 
countries are in perpetual laborious strife for bare black bread, 
and their respective governments in all ways encourage their 
emigration. When a majority of the voters in a republic are 
suffering for mere bread, what will be the issue ? 

Our present population may be stated at twenty-eight mil- 
lions. According to our ratio of increase, this, in twenty-five 
years, will give us forty-six millions, equal to the present popu- 
lation of both Great Britain and France. In fifty years we 
shall have upwards of a hundred millions. How will our sys- 
tem answer for the proper government of so huge a population 
as that ? Every dictate of prudence prompts us to postpone, 



MANIFESTDESTINY. 45 

as long as possible the day for putting it to so severe a test. 
But if tliat is not enough to startle us into serious thinking, 
let it be remembered that during the life-time of many now 
living we shall have a population of two hundred millions, 
nearly equal to the present population of all Europe. 

The proposed amendment of the Constitution points to an 
efficient mode for eifecting the desired postponement. It 
closes the door against an increase of the evil, by means of 
future acquisition of territory, and opens a door to facile relief 
against excess both of territory and population. 

If private information be reliable, the people of California, 
and probably also the people of our whole Pacific border, are 
anxiously awaiting the day when they shall feel strong enough 
openly to declare themselves in favor of secession. There is 
said to be, even now, a large party in its favor. The judicious 
among them are said to be holding them back till the Federal 
government fortifies their harbors, suj^plies them with arsenals, 
and provides railroad communication with the East. Let us 
do all this and more for them. Whenever they feel prepared 
to go ofi" to themselves, let us give them also a small navy, and 
let them depart with an affectionate, fraternal farewell. 

In ten years from this time they will have a white popula- 
tion equal to at least two-thirds of that with which our fathers 
declared independence, and struggled through a seven years' 
war to obtain it. Their position will be one of much greater 
security. They will be accessible to no force they need fear, 
except their brethren on this side the mountains, from whom 
they can well anticipate aid instead of aggression. 

If the feeling alluded to, does not already exist, it is certain 
to come before the lapse of ten years. Their obvious local 
interest clearly points that way. The ambition of their lead- 
ing men will urge them in that direction. Those men will 
prefer the masterdom of a new and stirring confederacy to 
playing Governors, Senators, or Representatives for remote, 
unimportant States, in a huge confederacy like ours. Their 
minds will be dazzled with the prospect of a rapid influx of 
enterpriziug population from all parts of the world. Their 
imaginations will gloat over the numerous valuable islands in 
the Pacific, as the future rich colonial appendages of their 



46 MANIFESTDESTINY. 

country. "With the proud consciousness of undeveloped en- 
ergy, they will hurry forward the day of separation, as does a 
young man his departure from the restraints of the paternal 
home. We on this side of the continent will probably not 
attempt to coerce their stay in the Union. To prevent danger 
on that score, let us, by an amendment of the Constitution, pre- 
pare the way for their peaceable exit. Let us not repeat the 
great folly of England in attempting to hold what we cannot 
properly govern. Let their departure in every way be a peace- 
ful and a friendly one. Let it be an amicable partition among 
brethren of the paternal inheritance. Let us give them for 
their share all west of the most eastern range of the Rocky 
Mountains. 

This will relieve us of near a third of our territory. The 
steady large emigration from us to them will materially post- 
pone the day when we shall have to endure the nuisance, and 
our government stand the strain of an excess of population. 
It will also relieve us of most of that restless, unquiet class of 
population from which come mob agitators and fillihusters. 

What a magnificent foundation for a great empire it will be 
that we shall thus yield to them I They cannot fail to become 
the dominating power over the broad Pacific, and the principal 
recipients of the wealth of its great commerce. The only fear 
for them will be that their career will be too rapid and bril- 
liant for laying secure and enduring foundations of civil liberty, 
and forming a sound national character. But, be that as it 
may, let us give them free and early leave to work out their 
destiny in their own way ; being very sure that we shall thereby 
achieve a great benefit to ourselves. "We shall thereby be the 
better able securely to work out our own proper destiny ; that 
"manifest destiny" which the great founders of the republic 
intended for us as the conservators and perpetuators of civil 
liberty. If we succeed in that, we shall attain the richest 
benefit and proudest renown that any nation can hope to 
achieve. 

Adopt the proposed amendment of the Constitution, and we 
shall make proud proclamation to the nations abroad, and to 
our own people at home, that our true "manifest destiny" is 
to be the conservators of civil liberty, and, by our example, to 



SQUATTER SOVEREIGNTY. 4T 

discountenance the use of might against riglit. "We shall 
proudly proclaim as our true, unalterable national policy to 
grow great, with an ever progressive greatness, upon our own 
abundant resources, without filching or robbing from our 
weaker neighbors. Do this and firmly stand by it ; also cease 
sectional agitation in senseless scrambles for the balance of 
power, and we shall soon cease to hear of the decay of national 
feeling and patriotism among us. Every native of the soil 
will love, because he will be proud of his country. 



CHAPTER V. 

December 3, 1858. 

SQUATTER SOVEREIGNTY. 

Response to tJie Essay on Popular Sovereignty imputed to the Hon. E. J. 

The example of the Supreme Court in disregarding precedents 
and long-settled construction has encouraged every sort of per- 
son to attempt new readings of the Constitution. Whilst such 
attempt is maintained only by multitudinous disquisitions that 
betray utter want of constitutional lore and legal acumen, it 
needs no special attention. The mere opinions of such writers 
carry no weight with them. Not so, however, as to a decision 
of the Supreme Court, or as to the opinion of an eminent coun- 
sellor on the meaning of a decision which he was principally 
instrumental in obtaining. Most men out of the profession 
take such an opinion upon trust, and many even of the profes- 
sion do the same, rather than incur the trouble of verifying for 
themselves the accuracy of the statements of such counsel. 
Hence the necessity of some brief response to this bulky pam- 
phlet. 

The chivalry with which Mr. J stakes a high profes- 
sional reputation in attempting the rescue of a political friend 



48 SQUATTER SOVEREIGNTY. 

requires indulgence to be mingled with the astonishment his 
pamphlet has caused. He seeks no evasion, dodges behind no 
quibble, but gives it as his deliberate opinion that, whilst Con- 
gress has no power to exclude, to establish, or to protect slavery 
in a Territory, yet its Legislature can do them all, and claims 
the Dred Scott decision as sustaining his opinion. 

The main point, and, apart from the citizenship of a negro, 
the only point decided by that case, was that Congress could not 
prohibit slavery in a Territory. The only semblance of a tan- 
gible reason given by the Court why this could not be done, 
was because such prohibition violated those clauses of the Con- 
stitution which protect an owner from deprivation of his prop- 
erty without compensation and due process of law. 

As to the general broad power of free Congressional legis- 
lation over Territories within the pale of the Bill of Rights, 
the concession of the Court is full, frank, and unqualified. 
Within that limit the absolute sovereignty of Congress for all gov- 
ernmental purposes is fully and distinctly admitted. 

In Canter's case Judge Marshall and his associates had said 
that the power of Congress to govern a Territory is " unques- 
tionable." In the Dred Scott case Judge Taney and his asso- 
ciates say in their comment: "iw this we entirely concur, and 
nothing ivill be found in this opinion to the contrary. The power 
stands firmly, as the inevitable consequence of the right to acquire 
territory.'' As the power of governing a Territory by a legis- 
lative department necessarily includes the power of legislation, 
this is a full, distinct, unequivocal recognition of the Congress- 
ional power of legislation over a Territory. As to the extent 
of that power there is equal unanimity between the two sets 
of Judges, with only a seeming but no real difierence between 
them. 

In Canter's case Judge ISIarshall and his associates unani- 
mously held that " in legislating for the Territories Congress exer- 
cises the combined powers of the General and of a State Crovern- 
ment." In other words, as they might have said, Congress has, 
like a State government, all power not expressly prohibited. This 
latter form of expression was not used, because Judge Mar- 
shall knew that no jurist could so far misunderstand him as to 
suppose he meant to assert a power in Congress contrary to the 



S Q U A T T E R S V E R E I G N T Y. 49' 

express inhibition of the Constitution. Yet, Judge Taney, in 
having laboriously performed the gratuitous task of relieving 
Judge Marshall from such an imputation, has caused the only 
even seeming difference between the two sets of Judges as to 
the extent of the Congressional power. With this explanation 
Judge Taney and his associates confirm what Judge Marshall 
had said, and approve his decision in the Canter case, sustain- 
ing an act of Congress, which was the exercise of a quasi State 
government power over a Territory, not at all of express Fed- 
eral grant, but rather in repugnance to the proper or peculiar 
Federal structure of the government. Judge Taney and his 
associates, after thus explaining that decision, say in reference 
to it: "jSTo one, Ave presume, will question the correctness of 
that opinion ; nor is there any thing in conflict with it in the 
opinion now delivered." They further say : " The power exer- 
cised by Congress to acquire territory and establish a government 
there according to its own unlimited discretion, was viewed with 
great jealousy by leading statesmen." "We do not mean, 
however, to question the power of Congress in this respect." 
"All we mean to say on this point is, that as there is no express 
regulation in the Constitution defining the power which the 
General Government may exercise over the person or property 
of a citizen in the Territory, the Court must look to the pro- 
visions and principles of the Constitution for the rules and 
principles by which its decision must be governed." " Taking 
this rule to guide us, it may be safely assumed that citizens of 
the United States who migrate to a Territory cannot be ruled 
as mere colonists, dependent upon the ivill of the General Gov- 
ernment, and to be governed by any laws it may think proper 
to impose.''' "A power in the General Government to obtain 
and hold colonies or dependent territories, over which it might 
legislate ivithout restriction, would be inconsistent with its own 
existence in its present form." Thus the Court recognizes the 
power of Congress to legislate for Territories within the pale 
of the Constitution. 

Again, Judge Taney and his associates say, further : " It was 

not only within the scope of its power, but it was the duty of 

Congress to jpass such laios and establish such a government as 

would enable the nation to reap the advantages anticipated 

7 



50 SQUATTER SOVEREIGNTY. 

from its acquisition." "The form of tlie government neces- 
sarily rested in tlie discretion of Congress. In some cases a 
government, consisting of persons appointed by the Federal 
Government, would best subserve the interest of the Territory. 
In other instances it would be more advisable to commit the 
power of self-government to the people of the Territory." 
Thus affirming in effect that Congress might retain the gov- 
ernment exclusively in its own hands, as in the case of the 
District of Columbia, without the aid of any Territorial legis- 
lation whatever. 

Again, they say : " These provisions (the Bill of Rights) are 
not confined to the States, but extend to the whole territory 
over which the Constitution gives potver to legislate, including 
those portions which remain under Territorial government." 
"And if Congress itself cannot do this, (that is, prohibit slavery,) 
if it is beyond the powers of the Federal Government, it will 
be admitted, we presume, that it could not authorize a Terri- 
torial government to exercise them, (the prohibited powers.) 
It could confer no power on a local government, established hy 
its authority, to violate the provisions of the Constitution." 
Thus clearly indicating the opinion of the Court, if it be needed, 
on so clear a proposition, that such prohibition being uncon- 
stitutional when imposed by Congress, it must be equally so 
when imposed by a Territorial Legislature, deriving all its 
power from Congress. 

E'otwithstanding all this direct, indirect, repeated and most 
explicit recognition of the right of Congress to legislate for the 
Territories on all non-proJiibited subjects, and even to retain their 

entire government exclusively in its own hands, Mr. J 

assumes that the Dred Scott decision is an authority to prove 
that Congress has no power to legislate for the protection of 
slave property within the Territories. The Court denies the 
power to prohibit slavery, on the sole ground that such pro- 
hibition infringes upon the Bill of Rights ; yet he does not 
pretend that protection, or even the establishment of slavery, 
comes within any prohibition of the Constitution. The Court 
treats the whole Territorial legislative power as derived from 
Congress, which therefore cannot extend beyond what Con- 
gress itself possesses. He, on the contrary, contends that 



SQUATTER S V E R E I G X T Y. 51 

though Congress cannot, yet the Territorial Legishiture may 
" exclude " slaves ; and that though Congress cannot, the Legis- 
lature may protect slave property. The Court decides that 
the owner has a right to carry his slave property to a Territory 
and keep it there, and that to prohibit the exercise of this right 
is to deprive him of his property in violation of the Constitu- 
tion. His argument is, therefore, in eflect, that though Con- 
gress cannot, the Legislature may so violate the Constitution as 
expounded by the Court. This he does not say explicitly, in 
so many words, but to escape that dilemma, whilst claiming 
the decision in his favor, he boldly invalidates the decision 
itself by proving the only reason upon which it is based to be 
unsound and ridiculous. 

As before stated, the only tangible reason anywhere given 
in the very prolix opinion of the Court, for denj-ing power to 
Congress to prohibit slavery in a Territory, is to be found in the 
following clause of the opinion : 

" Thus the rights of property are united with the rights of 
person, and placed on the same ground by the fifth amendment 
to the Constitution, which provides that no person shall be 
deprived of life, liberty, or property, without due process of 
law. And an act of Congress which deprives a citizen of the 
United States of his liberty or property, merely because he came 
himself or brought his property into a particular Territory of 
the LTnited States, and who had committed no offence against 
the laws, could hardly be dignified with the name of due pro- 
cess of law" 

This is not merely the sole reason given for denying the 
power to Congress, but, strange as it may appear, not a soli- 
tary argument is adduced to prove the sufficiency of that reason. 
So perfectly self-evident to the Court was the all-sufficiency of 
the reason, that it was deemed unnecessaiy to make out the 
sufficiency by argument. That to prevent a man from carry- 
ing his slave to a Territory was to deprive him of his propert}'-, 
within the meaning of the Constitution, was assumed to be so 
obviously clear as to need no argument. After conceding to 
Congress all non-prohibited power, it was incumbent upon the 
Court to show the prohibition, and this is the only mode it 
takes to discharge that duty. 



62 SQUATTER SOVEREIGNTY. 

N^ow, let us see how tliis all-sufficient reason, wliicli consti- 
tutes the exclusive basis of the decision, is treated by Mr. 

J , who was so principally instrumental as counsel in 

obtaining the decision, who still lauds it and its authors to the 
skies, whilst claiming it as an authority in his favor. 

A certain political and personal friend of his has thought 
proper to stake his aspirations upon the maintenance of his 
newly discovered dogma that, though Congress cannot, a Ter- 
ritorial Legislature may^ "by unfriendly legislation," drive 
slave property from a Territory. Mr. J , with self-sacri- 
ficing chivalry, rushes in to aid this friend ; but, knowing it is 
useless to contend for a power to do indirectly what cannot be 
done directly, scouts all evasion, comes manfully up to the main 
point, and boldly affirms the power of a Territorial Legislature 
directly to exclude slavery. He is met with the decision of his 
much-admired friends, the Judges, saying such exclusion de- 
prives owners of their property without due process of law, and 
is therefore unconstitutional. This difficulty, if left in his way, 
he sees is insurmountable. He must remove it. He addresses 
himself to the task with manful, not to say successful, intrepid- 
ity. Hear what he says : 

" Is private property appropriated to public use by laws abol- 
ishing slavery, or prohibiting the right to bring such property 
into a State or Territory ? Certainly not. Such legislation is 
to be found in almost every State in the Union, and no one has 
had the temerity to call it in doubt. * * Being property, it 
cannot be confiscated or appropriated to public use without 
compensation. The introduction of slavery into a Territory 
may be prohibited, but this is not public appropriation of private 
p)roperty. It is not denied that this can be done by State power, 
although, besides the prohibition contained in the Federal Con- 
stitution, there is a like one in the constitution of every State. 
"Why, then, as must be admitted, is it in that case legitimate ? 
Because it is a fit subject of legislative power, and is not within the 
words or object of such a prohibition." 

He then proceeds further to enforce this position with full 
and most convincing arguments, though omitting many which 
might be added. Well done, Mr. J ! He is, in this, con- 
tending for what the legal profession, almost unanimously, 



SQUATTER SOVEREIGNTY. 63 

believes to be sound law. Whilst so doing be may be backing 
up bis friend, but seems unaware that be is at the same time 
hacking down tbose so-much-admired friends of his who gave 
that Dred Scott decision which he thus so ruthlessly, if unwit- 
tingly, assails. lie is knocking from under that decision its 
only prop — its wJioIe foundation. In so doing he only does what 
probabl}^ nine-tenths of the profession had already done. But 
he seems not to perceive that he is bringing down the whole 
decision in ruins upon his own head. By destroying the sole 
reason upon which the decision rests, he destroys its whole 
value as an authority to prove that the power is not in Con- 
gress, and by necessary consequence, as he contends, must 
therefore be in the Territorial Legislature. By destroying the 
authority of the decision we return to where we were before 
its rendition, where, by sixty years' usage and almost universal 
consent, Congress had full power over the prohibiting, the 
establishing, and the protecting of slavery in the Territories. 

He labors, "\^dth perfect success, to prove that the power to 
abolish, to establish, and to protect slavery is an indispensable 
legislative power, which is bound to exist somewhere for the 
proper government of the Territories. But those of us who 
concur with him, or have heretofore urged the same opinion, 
cannot but regret that, whilst obtaining the Dred Scott deci- 
sion, he had not reminded the Court of this important fact. 
The decision might have been different, or at least it would 
have rendered the Court more chary in denying so indispen- 
sable a power to Congress, when, according to its view of the 
subject, if not held by Congress it would exist nowhere else, as 
the powers of a Territorial Legislature are all derived from 
Congressional grant. 

But, conceding the decision to be right, notwithstanding his 
proof to the contrary, it does no way aid him in proving his 
proposition that Congress has no power to intervene for the 
regulation of slave property. The assumption that its want 
of power to impair implies a want of power to protect a right 
is about the grossest 7ion sequitur ever propounded. So far 
from that being true, all those rights of person and property 
which are guaranteed by the negation of power to impair them 
are so guaranteed on account of their great value and import- 



54 SQUATTER SOVEREIGNTY. 

ance, and are therefore pre-eminently special objects for Con- 
gressional protection. In reference to them, as Judge Taney 
and his associates say in reference to an analogous subject, the 
only power of Congress " is the power connected with the duty 
of guarding and protecting the owner in his rights." This 
power and duty Congress has no right either to abdicate or 
alienate. The people of the South will permit no such abdi- 
cation of a power or surrender of a principle at all necessary 
to the protection of their slave property. That they will not 
do so merely for the convenience of a political party, in avoid- 
ance of a party split, and in subservience to political prejudice, 
the Southern Opposition will be very heedful. 

Mr. J earnestly insists that the Democracy is com- 
mitted to non-intervention. Its most authoritative committal 
is altogether the other way. He relies on those "gull-traps," 
the platforms of party conventions, gotten up by unofficial, 
irresponsible political managers for the purposes of an election 
campaign. The party has spoken and acted on that subject, 
through its highest chiefs, in a much more responsible and 
authoritative manner, by their unanimous vote — Judge Doug- 
las included — in favor of what was called the " Toombs-Kansas 
bill," which passed the Senate after the adoption of the Cin- 
cinnati platform. The writer has not immediate access to that 
bill, but can state its purport fi'om distinct recollection. It 
repealed all those infamous acts of the Kansas Legislature 
which Senator Cass appropriately characterized as " a foul dis- 
grace to the nation and the civilized age in which we live," 
and by express prohibition nullified in advance all future legis- 
lation of the same character. This was the most signal exem- 
plification that could possibly be given of the power and duty 
of Congressional intervention. Much of the legislation so at- 
tempted to be annulled had direct reference to, and bearing 
upon, slave property. This bill having been voted for by every 
Democratic Senator, on his official responsibility, affords an 
enduring, unequivocal committal of the party, which no unof- 
ficial acts of the irresponsible members of a mere party con- 
vention can revoke or alter. The mere exigencies of the party, 
however imperative, cannot absolve it from that committal, 
even in the estimation of honest, intelligent Democrats. It 



SQUATTER so VEKEIGNTY. 55 

should deservedly weigh with such men much more than all 
the wild vagaries and loose theorizing of politicians, even when 
endorsed hy the most eminent counsel. When that hill was 
passed it was deemed a great necessity in reference to the then 
pending election campaign, to relieve the pai*ty from the odium 
of that infamous legislation. The Southern Democracy aided 
the intervention to demolish improper protection to slave prop- 
erty, and therehy assist the party. With no show of justice 
can they he now called upon to condemn that action hy volun- 
tarily surrendering all claim of Congressional intervention for 
rightful protection when needed. As their claim is one of 
simple justice, they cannot he expected to ahandon it in pro- 
pitiation to mere prejudice. Mr. J 's pathetic appeal, in 

behalf of the unity and harmony of the party, should have 
been addressed to its Northern wing for a forbearance of its 
obtrusive and damaging prejudices. 

The South has a hard bargain in the Dred Scott decision, 
if squatter sovereignty has to accompany it as a necessary ad- 
junct. The examples of California and Kansas prove that the 
South can better rely on the tender mercies of Congress than 
those of squatter sovereigns. The South will always have 
great influence with any dominant party in Congress, whereas, 
over squatter sovereigns, it has no means of influence or con- 
trol whatever. This was the view taken by the people of 
Kentucky in the last canvass, and which was manifested 
with so much apparent unanimity that nearly all the Demo- 
cratic candidates were compelled to abandon the doctrine of 
non-intervention. The Southern Democratic leaders know the 
same result would ensue a discussion in any Southern State. 
Hence they dare not, from fear of the Opposition, adopt Mr. 

J 's advice. As imminent as may be the danger of 

general defeat to the party, that of its local defeat in the South 
would be still more so if they were to attempt the abandon- 
ment of a power or principle deemed necessary to the protec- 
tion of Southern property. 



56 DISUNION. 



CHAPTER VI. 

DISUNION. 

Extract from a series of Numbers published under tJiis title in tlie summer and 

falloflSSQ. 

It appears to be the concurring opinion of all reflecting men 
that the Union is in great danger ; that the sectional contest 
now waging between two of the contending parties puts it in 
imminent peril. Such is the warning sent from Congress to 
the nation by some of our most eminent and venerable states- 
men. Democratic leaders, through the* press and from the 
stump, are everywhere sounding the alarm. Conservative men, 
not of their party, also feel the danger, and give credence to it 
the more readily, because it was what they foresaw and fore- 
told as a necessary consequence of that act of folly, the repeal 
of the Missouri Compromise. Thirty-six years ago the same 
question split the nation into two violent sectional parties. The 
mutual animosity occasioned by it caused, to intelligent patriots 
of that day, the most intense anxiety. Its fortunate adjustment 
seemed to lift a load from their minds ; they breathed more 
freely; they clasped each other's hands with mutual gratula- 
tions. It seemed to them that the country had received a new 
lease of life. 

Human nature must be much altered from what it is and 
always has been, if such a question, whenever raised, does not 
put the Union in danger. Sectional divisions are just as natu- 
ral, our proneness to them just as strong, as to local partialities 
and prejudices. Those feelings, if indulged and excited into 
action, become violent, unreasoning passion, and render us the 
easy dupes of the designing and the wicked. If, to a question 
involving such prejudice and partiality in the highest degree, 
there be superadded a question of political power, a sectional 



DISUNION. 57 

contest for power, we have tlie materials from whicli to gene- 
rate the bitterest and most unappeasable sectional strife. The 
wise founders of our Government understood this perfectly, 
knew the effect of any great sectional strife, and spared no 
pains to warn us against this, the deadliest peril in our national 
career. 

The peril of 1820, greatly as it alarmed the wise and good 
men of that day, could have been but little when compared 
with that now impending over us. The national heart, Avith 
small exception, was then everywhere sound in its loyalty to 
the Union. Avowed disunionists were to be found nowhere. 
The then recent foreign war had consolidated the national 
patriotism. There had been no sectional legislation, or none 
which was then represented as favoring one section to the pre- 
judice of another. The public mind South had been alarmed 
with no fear of any design at the ISTorth prejudicial to slave 
property. The public mind ISTorth had not been lectured or 
preached into any undue prejudice against such property. 
Abolitionists did not then exist. More than ten years later 
the people of l!^ew England refused to give them even a hear- 
ing. They were refused the privilege of lecturing in favor of 
abolition. 

Though the ITorth was arrayed in almost solid phalanx against 
the admission of Missouri, yet her statesmen did not justify their 
opposition upon any fanatical pretext of opposition to negro 
slavery in the abstract as immoral or irreligious. They justified 
it on the broad, statesman-like ground assumed by the Revolu- 
tionary fathers when making the restriction in the Ordinance 
of 1787 ; that is, for the sake of the whites themselves. So far, 
and so far only, they went into the moral of the question. They 
also affirmed that thcN'orth had been inadvertently cheated by 
the compromise of the slave question contained in the Consti- 
tution. That the equivalent therein given for the three-fifths 
representation allowed to slaves turned out in practice to be no 
equivalent at all, the revenue not being raised by direct taxa- 
tion, and the promised discrimination in favor of the free 
States, therefore, never actually occurring. Every extension 
of slavery, they said, was adding to the prejudice they received 
by reason of the alleged unequal bargain ; and Missouri being 
8 



68 DISUNION. 

no part of the Union at tlie time of the bargain, they had a 
right to protect themselves against further extension of the 
inequality. They said that a community of interest in slave 
property caused a community of feeling and concert of action 
among the slave States, which gave them a preponderance in 
all political contests greatly beyond their relative strength. In 
proof of this they referred to the fact that the South had held 
the Presidency for thirty-two out of thirty-six years. They also 
alleged that, practically, the institution of slavery in any State 
or Territory was as much an inhibition to immigration from 
the free States as if expressly prohibited by law ; and the North, 
having paid its full share towards the purchase of Louisiana, 
had a right to take care that her citizens should participate in 
the benefits to be derived from settling in at least a part of the 
purchase. 

However unsatisfactory this course of reasoning appears to 
Southern men, yet, aided by sectional feeling and prejudice, it 
was so convincing to Northern men as to array them in an 
almost solid body against the admission of Missouri. Nor can 
it be altogether destitute of plausibility, for many Southern 
men insisted most strenuously, for very similar reasons, that 
slavery should be legislated by Congress into the southern half 
of California, so that the South might participate in the bene- 
fits of that acquisition, and this too against the known wishes 
of the people of California. 

The question is sprung upon us at the present time under a 
very diftorent state of case, and a very difierent condition of 
popular feeling. The mutual exascerbation growing out of the 
contest concerning the tarifl', with the unceasing agitation of 
the slavery question, for the last twenty years, has caused great 
alienation, if not antipathy between the extreme North and 
South. The propagation of Abolitionism is promoted and 
encouraged from the pulpit, the press, and the stump. Able 
and eloquent men are encouraged by public patronage to devote 
themselves to its propagation. Having no one to counteract 
them, they have infused the most bitter prejudice into a large 
part of the Northern mind on the subject of negro slavery. 
This, reacting upon the South, has engendered a strong dislike 
against all those of the North, who countenance and encourage 



D I S U N I X . 59 

these wicked propagandists. Avowed disunionists are to be 
found in large numbers, both in the extreme South and in the 
extreme ISTorth. There is every reason to believe that promi- 
nent and influential men in both sections have been for years 
agitating the slavery question, with the express view of bring- 
ing about disunion. These things properly considered, how 
much greater must be the danger from the sectional contest 
now than it was in 1820. All considerate men must concur in 
the opinion that the danger is imminent. 

"VYhat, then, does this thing called disu7iion mean ? We have 
been taught to look upon it as a dreadful something of mutual 
disadvantage, an undetined sort of national calamity that might 
overtake the nation in a remote future, the particular features 
of which there was no present need for inquiring into with any 
care. But if the danger is now upon us, if it is already at our 
door, it is high time that we should fully understand what it 
means. If it be one of the alternatives brought to the mind 
of every voter during the present contest for the Presidency, 
he should be able to understand and appreciate what that alter- 
native means. It means a hostile army on the other side of 
the river, bombarding the city of Louisville, battering down 
and burning its houses, and leaving the fair city a mass of 
ashes and smouldering ruins. It means the same thing to be 
done to Cincinnati. It means the destruction of every town 
on either bank of the Ohio, from "Wheeling to its mouth. It 
means the converting the valley of the Ohio into a great battle- 
field for the contending armies of hostile nations. It means 
broad tracks of ruin and desolation which those armies will 
eveiywhere leave behind them. This is what it means for us 
who live in this valley. "What it means in other localities, the 
people of the other Middle States can figure for themselves. 

Such being its meaning for us in this valley, it behooves us 
in an especial manner, more than the people of any other sec- 
tion, to carefully look into the supposed necessity for a resort 
to any such alternative. 

This great valley of the Ohio has been pronounced by an 
enlightened foreign traveller to be the most magnificent seat 
of empire that God has anywhere provided for man upon the 
face of the earth. It is the site of five large prosperous States, 



60 DISUNION. 

and of a large part of the sixtli. It is already tlie peaceful, 
happy, and prosperous abode of seven millions of people, and 
in a quarter of a century will be the abode of more than fifteen 
millions. It soon will be the heart and centre of the popula- 
tion, and must in all time continue to be the centre of the 
population and power of this great nation. Similarity of in- 
dustrial pursuits, identity of commercial interests, and geo- 
graphical position compel its inhabitants all to live under one 
Government, and must so compel them for all time to come, if 
they desire their own happiness and prosperity. It is in this 
valley that the slaveholding and non-slaveholding States touch 
each other upon their longest line of separation ; an indefen- 
sible line of near a thousand miles. It is therefore that dis- 
union upon the slave line should never be to them a matter of 
choice in any state of things whatever. We could much better 
afford to give away the Carolinas, Georgia, and all 'Sew Eng- 
land, to some foreign power than take the first step toM^ards 
such an act of self-destruction. Are we, at the contemptible 
bidding or solicitation of malcontent disunionists in the ISTorth 
and South, to sever all the ties of interest and aflection which 
bind us together, and convert this now happy valley into a 
great battle-field? Have we so little intelligence and true 
patriotism as to suffer our passions and prejudices to be so 
played upon to our own self-destruction ? 

Kentucky's great orator mislocated the " keystone of the 
Federal arch," when he assigned that function to "good old 
Pennsylvania." Its true position is further west. It would 
savor too much of mere compliment to assign such a great 
function to any one State. The compliment is large enough to be 
divided among a cluster of States. It properly belongs to our 
great valley of the Ohio. If the States of that valley are sev- 
erally true to themselves, they will be true to each other. They 
should take every occasion to make known their determination 
to remain one and inseparable, let the balance of the Union 
break into what fragments it may. The knowledge of that fact 
would go far to silence all disunion schemes and agitations. 
For, if it be conceded that the States in this valley are unal- 
terably determined never to separate, disunion will cease to be 
a peril in our national career. It would no longer be in the 



DISUNION". 61 

power of mail to break up the Union, or if at all, certainly not 
upon any dividing line west of the Hudson, or east of the 
Rocky Mountains. The desire for our commerce will always 
grapple to us l^ew York and Pennsylvania as the northern 
buttress, and the lower valley of 'the Mississippi as the south- 
ern buttress of the Federal arch. By thus binding them to us 
they will be bound to each other, and all lying between them 
will be compressed into unity, and the Union thus become 
indestructible. A mere sliver knocked oiF from the northeast 
or southeast, or even detaching the great bulk lying west of 
the Rocky JSIountains, would not materially injure either the 
prosperity, the strength, or the durability of the remainder. 
Can it be, that in any hour of mad passion we ourselves will 
pull asunder the glorious arch, and bring it down in destruc- 
tion upon ourselves ? 

There is no matter of practical interest or importance in- 
volved in the question, whether Kansas shall be a free or slave 
State, that should weigh a feather in the estimation of any of 
the States in the Ohio valley, when poised against the vastly 
greater interest which each of them has in the preservation of 
the Union. As to the free States, they want no accession of 
political strength. With five Territories that are bound to 
come in as free States, there is not even the possibility of dan- 
ger that the ^N'orth can ever lose its x^reponderance in the num- 
ber of States, or of population. According to every calculation, 
both must increase rapidly and largely in her favor. So true 
is this, that she could well afford to give it to the South as a 
make-peace ; at any rate, she can well afford to wait patientl}', 
and to see whether Kansas will not come in as a free State, even 
as her affairs now are, rather than make her the cause of an 
irreconcileable feud with the South. The ISTorth must recol- 
lect that, whatever supposed wrong she may have sustained by 
the repeal of the Compromise, her own representatives were 
mainly instrumental in producing tlje wrong, and it is the 
result of their free offering. If there was any corrupt bar- 
gaining with those representatives, the whole South is not 
responsible for that, as is sufficiently obvious from the fiict 
that the promised price of the supposed bargain has not been 
pstid. jS'oi'thern representatives have been mainly instrumental 



62 DISUNION. 

in bringing the nation into its present difficulty, and tlie Kortli 
should have patience and forbearance towards the honest efforts 
to get us out of it. Resisting the repeal of the Compromise, 
and even punishing ISTorthern representatives for its repeal, is 
a very different thing from forcing its restoration, and espe- 
cially forcing it in violation of the spirit of the Constitution. 
K conciliation, or even compromise, be necessary for the final 
adjustment of the dispute, the free States of our valley should 
meet Kentucky and Tennessee in the proper temper, and aid 
them in effecting a pacification. Their efforts, like ours, should 
all be directed towards conciliation, and against widening the 
breach. The earnest efforts of all should be bent towards a 
speedy adjustment, for no man can foresee the result of a pro- 
longation of the conflict during another Presidential term. 
"We already find the House of Representatives prepared to stop 
the wheels of government for the purpose of coercing conces- 
sion to its view of a part of the controversy. "We shall have 
an exaggerated repetition of the same sort of collisions if Bu- 
chanan is elected, during the whole of his term. If Fremont 
is elected, the same scenes will signalize all his term, with the 
only difference that the Senate, instead of the House, will be 
the body to come in collision with the President and stop the 
wheels of government. 

The fact that Kansas will most probabl}^ become a free State 
can constitute no inducement with Kentuckians to take part 
in this sectional strife, even if the matter were weighed in 
purely selfish scales, and even if negro slavery were the para- 
mount interest of Kentucky. With her seven hundred miles 
of free State border, her most important interest, growing out 
of her slave property, is to have and preserve quiet on the 
slave question. Such quiet is of the most vital importance to 
her ownership of that property. 

But her slave property is far from being the most important 
interest of Kentucky, either in a pecuniary, social, or political 
point of view. In all these aspects there is another thing in 
which she has a much deeper and more paramount interest. 
Tltat other great interest is the preservation of the Union. The 
great body of the wealth of every State is in its land. To give 
proper value to that land, it must afford peaceful, prosperous 



DISUNION. 63 

homes to its inhabitants. It must have facile access to its 
natural commercial outlets and marts. Break up the Union 
on the slave line, destroy the bonds of amity between the IsTorth 
and South, and we shall become two hostile nations, seeking 
nothing but mutual injury and destruction. Where, then, will 
be our commerce ? We shall have none. Our great outlet 
on the gulf will be blockaded by a naval force from the North, 
and all access to the best Atlantic marts cut off. The owners 
of slaves would immediately run the most of them to safer lo- 
calities. With an undefended and indefensible border of seven 
hundred miles, we should be perpetually liable to predatory 
inroads of armed invaders. Everywhere through our State 
war would soon leave its broad tracks of ruin. It is true that 
Kentuckians are not a race who would tamely submit to such 
injuries. They would have vengeance, and inflict similar inju- 
ries on our neighbors north of the river. Vengeance may be 
sweet, but it is not always profitable. Their injury would not 
be our profit. When Kentucky can no longer give peaceful 
and prosperous homes to her citizens, what then will be the 
value of her land ? 

It would be arrogating for our people perhaps too much to 
claim for them a very high degree of that moral quality which 
makes devoted, disinterested patriotism. But if patriotism be 
evinced in its higher properties by a loyal devotion to the 
Union, then we may safely claim that Ivcntuckians have no 
superiors, and but few equals, in devotion to their coun- 
try. Li their opinion disunion is a remedy for nothing, but 
is in itself the worst of evils. There breathes not a sinsrle dis- 
unionist within all her bounds. It may 1be that our position 
makes self-interest and patriotism identical. Happy for us if 
it be so ; unhappy for those localities, if any such there be, 
where interest and duty are not equally blended. But be the 
fact with us as it may ; be it an enlightened self-interest, or the 
nobler feeling of love for our country ; be the prompter the 
pocket or the heart, the universally disseminated feeling among 
Kentuckians of loyalty to the Union shows that, in their esti- 
mation, our great paramount interest is, ever has been, and 
ever will continue to be, the preservation of the Union. 



64 DISUNION. 

No. n. 

This is one probaLle mode in which the break-up might 
be accomplished. There are various others that would serve 
equally well for infuriate men, acting under the impulses of 
mere blind passion, even if there were none among them act- 
ing with the formed design of destroying the Union. Ex- 
tremists are always the leaders and dictators in times of high 
party excitement. They are the men that would have control 
of Buchanan and Fremont. !N^ow it so happens that the people 
of the West have long entertained a well-grounded suspicion 
that a large portion of the political leaders and agitators east 
of the Hudson, and a still larger portion of tLem south of Vir- 
ginia and Tennessee, actually desire disunion. With such 
men controlling, or at heart greatly influencing the two sec- 
tional parties, at an hour of such mutual ill-feeling between 
the North and the South, it requires no prophet to foretell the 
result. South Carolina is openly and avowedly for disunion, 
and has been so for years. Her public press habitually advo- 
cates it. Massachusetts, with some one or more of the other 
New England States, has recently resorted to a system of legis- 
lative nullification which, allowing her credit for ordinary sense 
and discernment, can have no other object but to invite similar 
retaliatory legislation on the part of the Southern States, which, 
if resorted to by them, would go very far to destroy all the 
benefits of the Union, and leave it little worth preserving. 

Kansas is the cause of quarrel, and the continuance of the 
(j^uarrel the cause of danger to the Union. The quarrel can be 
settled, and the danger avoided, only by her speedy admission 
as a State. No man points to any other solution of the dif- 
ficulty. 

One party says she shall come in as a free State, or not at 
all. Another party says she may come in either free or slave, 
as she herself shall elect, but taking care, as the North be- 
lieves, that all the appliances of force, fraud, and Government 
influence shall be used to make her elect in favor of slavery. 
Neither of these parties can accomplish her admission during 
the next Presidential term, for neither has the slightest confi- 
dence in the honesty of the other; andAvithout the utmost con- 



DISUNION. 65 

lidence in the fairness with which the affairs of Kansas are 
administered, either the Senate will reject her as a free State, 
or the House of Representatives will reject her as a slave State. 
But the leaders of the Democracy have got themselves into 
a bitter quarrel with the North, and are crying out lustily for 
aid. Such is their need for help, that they are begging and 
entreating it from adversaries with whom they have waged a 
relentless warfare, and whom they have habitually maligned 
and traduced for more than twenty years. By their reckless 
folly they have brought the Union to the brink of ruin, and 
they beg aid to keep power in their hands, that they may save 
the Union. They entreat aid to defeat Fremont, because they 
say his election will dissolve the Union. One of them, a Sen- 
ator from Georgia, whose talents and position give him grea- 
influence with the supporters of Buchanan, in a recently pub- 
lished letter, declares that, in the event of Fremont's election, 
the Union not only will, but ought to he dissolved. That is, the 
Southern States will secede. The only thing that the Fremont 
party proposes to do, if successful, to which the Southern States 
can take exception, is the restoration of the Missouri Compro- 
mise line ; and, as incident to that, refusing the admission of 
Kansas, except as a free State. The doing of that would surely 
be a most insufficient pretext for dissolving the Union with 
any except those who desire it, with or without cause. It 
would merely put us back where we were three years ago, 
where the Southern States themselves placed us, and where 
we had lived peaceably and happily for more than thirty years. 
The Border Slave States will resist the restriction by their 
votes, but they will resist it no further. If the North, by its 
own votes, can restore the line, those States may regret and 
even complain of the act, but will be iav from deeming it a 
sufficient cause for disunion. On the contrary, they who have 
the temerity to proclaim it as sufficient cause, only subject 
themselves to the suspicion that they are disunionists at heart. 
Whilst thus recklessly avowing their determination to break 
up the Union for insufficient cause, it is with bad grace and 
little persuasiveness that they invite us to place its preserva- 
tion in their hands. If the people of the Middle States act 
9 



6Q DISUNION. 

wisely, they will entrust its preservation to no sucli hands, but 
will keep it in their own. 

One of the Democratic leaders is reported to have proclaimed 
in the Senate that the Northern opponents of the repeal should 
be subdued into obedience. Conservative men want no such 
gostering leadership as this. That is not the way to settle our 
national disputes. As certain as it is that the North cannot 
subdue the South into obedience, so certain is it that the South 
cannot subdue the North into obedience. Either section may 
be persuaded into reluctant acquiescence, but neither can be 
subdued into obedience. No real statesman would ever think 
of even making the attempt. "We of the Middle States, and 
especially of Kentucky, have no notion of joining in any war- 
fare of section against section, or in aiding the one to subdue 
the other. Our duty to ourselves and the Union is rather to 
interpose in such conflicts, for the express purpose of always 
trying to prevent the one from entirely subduing the other. 
So far from rallying to the cry for Southern unity in the pre- 
sent contest, and yielding to the insidious, but persuasive en- 
treaty, that the South may present an unbroken front in the 
conflict, that is precisely the thing of all others which we 
should avoid. We want no such array of unbroken fronts 
between the North and South. "Whenever the South presents 
an unbroken front, the North will do the same. "When that 
comes, we have, according to all men's admission, the pre- 
cursor to disunion and civil war. 

It always has been and always will be the first step of those 
who designedly seek a dissolution of the Union. Away, then, 
forever and a day, with this hypocritical cry of showing a solid 
front against the North for the preservation of the Union. 

Massachusetts is entitled to the unenviable honor of having 
invented, or inaugurated, this mode of opposing our Govern- 
ment by sectional State Conventions, and combining these solid 
sectional State fronts for the purpose of eflPecting disunion, un- 
der the guise of seeking redress for alleged sectional griev- 
ances. Under her influence the celebrated Hartford Conven- 
tion of New England was held during our last war with Great 
Britain. Though that war was as righteous and necessary a 
war on our part as ever was waged — though it had been de- 



DISUNION. 67 • 

clared mainly for the puq^ose of avenging the robbery of Xew 
England commerce, and the impressment of 'Rew England sea- 
men, yet Massachusetts gave the country no aid in carrying it 
on, but did everything in her power to paralyze oUr Govern- 
ment. To her enduring dishonor, she selected the gloomiest 
and most critical period of that war, when the peace in Europe 
enabled Great Britain to turn the whole of her naval and mili- 
tary power upon us, to start this treasonable scheme for efl'ect- 
ing a secession of the New England States. By her more 
recent deportment, by her apparent concurrence in the lofty 
strains of Union-loving, national patriotism with which her 
great champion beat down nullification, it was thought that 
she had been regenerated, and by a new course of life she 
meant to atone for and wipe out that foul stain on her es- 
cutcheon. But no sooner is that great champion dead, no sooner 
is she freed from his guidance and control, than she places 
herself under the petticoat government of her strong-minded 
women, her feeble-minded men, and her fanatics, and plunges 
into that Serbonian bog of nullification from which he said 
there w^as neither redemption nor resurrection. This, too, 
merely because a needful national measure of the highest and 
plainest constitutional obligation infringes upon her contempt- 
ible local prejudices. She has already forgotten the solemn, 
oft-reiterated warning of her great man against her prejudices, 
and yields herself up blindly to their impulse. 

The leaders of the Democracy in this hour of utmost party 
need, when they feel that long-abused power is slipping from 
their grasp, when they find that by their reckless folly they 
have lost some seventeen out of twenty-seven States, cry out 
for aid. They cloak their call for aid under the pretext of aid 
for saving that Union which they themselves have brought into 
peril. But how do they propose to save it ? Do they propose 
any measure for conciliation ? do they confess their own errors 
and promise to correct them ? No, they propose nothing of 
the sort. All they propose is war, interminable contest with 
the North, and are very lavish of their boasts and promises to 
subdue the North into obedience, if they can only get help. A 
most Quixotic enterprise truly, well worthy the sagacious and 
trustworthy men who broke down the largest political party 



68 DISUNION. 

we have ever known, in tlie fraction of a single Presidential 
term. Have they not the sagacity to foresee that the very same 
sort of sympathy, prejudice, and local interests with which 
they hope to combine the South in solid front against the 
North will enable their adversaries to combine the Korth in 
solid front against themselves? The hopeful enterprise to 
which they invite recruits is, with only 121 Southern electoral 
votes, to subdue the North into obedience, notwithstanding its 
175 electoral votes. A battle a Voutranee with the North is 
what they propose, and all that they propose — that, too, with 
such inadequate forces as render it perfectly certain that the 
South must ultimately be defeated, even though the Democ- 
racy should, contrary to all reasonable calculation, by some 
unknown chance succeed at the present election. 

They not only propose to do nothing towards conciliating 
the North, which, if not necessary to present success, is cer- 
tainly indispensable to the party's retaining power, but pro- 
mise the exact reverse. The}^ promise to do that which they 
cannot but know will widen the breach between the two sec- 
tions, and add fuel to the flame which is now heating their 
mutual animosity. They have, by their platform, and by the 
selection of their candidate, adopted and substantially promised 
to carry out that supereminent act of folly, the Ostend mani- 
festo. To say nothing of the national execration which the 
authors of that scheme have earned for themselves, for foully 
traducing our national honor in the eyes of all Europe ; to say 
nothing of that universal popular scorn, contempt, and indig- 
nation with which the proposition was everywhere met by the 
nation when first presented, the utter futility and impractica- 
bility of the scheme betray, by its adoption, the want of saga- 
city of the present leaders of the Democracy. 

But what do we want with Cuba, even if we could obtain 
it by fair purchase ? We have the full benefit of its commerce 
now without its costing us a dollar. We could not retain the 
island at an annual cost of less than ten millions of dollars. 
The Spaniards keep there never less than fifteen thousand 
troops. We could not hope to hold it with less than an army 
of ten thousand men. With less than that it would be liable 
to be seized by England or France at any moment ; and once 



DISUNION. 69 

in tlie grasp of either we could not regain it, or if at all, only 
after a protracted contest which would cost twenty times what 
the island is worth. 

In a military point of view, so long as the island remains as 
it now is, in the hands of a weak neutral, that is the position 
of all others the most desirable for us, for it affords to a power- 
ful enemy no means of attack upon us, and would cost nothing 
for its defence. If its acquisition be supposed at all needful 
to the defence of our Southern border, then, if we owned it, 
how much more necessary to its defence would be the acquisi- 
tion of San Domingo and Jamaica? Must we go on and 
acquire these also, and so on, from a similar supposed neces- 
sity, until we absorb all the West India Islands ? Such is the 
law of all territorial expansions ; the}' do but create a need 
upon the same principle for still further acquisition. As for 
satisfying the greed of those who are in favor of such a policy, 
that is impossible ; their greed is insatiable. 

What do we want with more territory, extending as we do 
from ocean to ocean, and owning as we do more than half of 
an entire continent, capable of sustaining a population ten 
times more than ever was or ever can be properly ruled by a 
single government? Xo nation needs more population or ter- 
ritory than is necessary to its protection against foreign ene- 
mies. All beyond that is mere injurious excess, because it 
but adds to the difficulty of good government. This is espe- 
cially true in reference to a republic like ours, which will never 
tolerate that efficiency in the government which is only to be 
obtained by an armed police. We have already more territory 
and population than are needed for the most perfect security, 
and every day's experience tends to show that we have more 
of both than we can properly govern. Witness the martial 
law now prevailing in our ISTorthwestern Territories, the mili- 
tary trampling on the civil authorities ; the lynch law prevail- 
ing in California ; the priest law and polygamy prevailing in 
Utah ; and the civil war prevailing in Kansas. But above all, 
witness those unpunished, unpunishable, and unpreventable 
mob violences which, from time to time, have visited nearly 
eveiy State in the Union. 



70 DISUNION. 

No. in. 

Let us now inquire what are the grounds that the people of 
the IN'orth have for justifying their opposition to the repeal of 
the Missouri Compromise, and we shall be better able to appre- 
ciate the propriety of dissolving the Union, as we are urged to 
do if Fremont is elected. That Compromise was forced upon 
the ITorth mainly by Southern votes. It was acquiesced in by 
both sides for thirty-four years, and treated by both sides as a 
final settlement of the question. It was almost unanimously 
approved in Kentuck}^, as it was in nearly the whole South, 
Kentucky's great orator acquiring vast reputation for his aid 
in effecting it. Amongst its more distinguished approvers were 
to be found Monroe, Giles, Chief Justice Marshall, and the 
Barbours of Virginia ; Lowndes, Calhoun, and Cheves of Caro- 
lina ; Crawford and Forsyth of Georgia ; with Pinckney, Wirt, 
and Smith of Maryland. It would be needless to extend the 
enumeration of distinguished men from the South who advo- 
cated the measure, for its approval in the South was so nearly 
unanimous that memory does not furnish the name of a single 
distinguished Southerner who opposed it, with the exception 
of the erratic and impulsive John Randolph. It is not to be 
denied ; the fact stands against us beyond all controversy, that 
with the full consent of the South, the observance of the Com.- 
promise was the price or equivalent which the South solemnly 
promised to pay for the admission of Missouri. It was at that 
price, and upon faith in that promise, that her admission was 
bought from Northern members. It was a fair bargain, fairly 
made, and honestly intended to be fulfilled by the Southern 
statesmen who made it for us. Tradition does not tell us of a 
single Southern member being turned out of his seat for voting 
■for it. 

But the Northern right rests not alone on the Compromise 
of 1820. In 1845 their consent had to be obtained to the 
admission of Texas. Then another compromise had to be 
effected on the slavery question. Then again the Missouri 
Compromise was re-enacted, ratified, and confirmed by an act 
of Congress, with the undivided consent of the South. 

A^ain in 1850 there was need for another compromise on 



DISUNION. 71 

tlie slave question, and again the North yielded all that the 
South demanded. This was a most bitter pill to the Xorth ; 
it came directlj^ and practically in conflict with the deepest 
prejudices of its people against slavery. The fugitive slave bill 
made them dircctl}', individually, and at their own homes 
actively instrumental in enforcing the power of the master over 
his slave. But they were assured that should be the last 
demand made upon them for a surrender of their prejudices. 
They were told that should be a final compromise. The great 
Democratic party, in its convention of 1852, renewed that pledge. 
By its platform the faith of the party was solemnly pledged 
that " all agitation of the slavery question, in or out of Con- 
gress, should be discountenanced by the Democracy, in what- 
ever shape or form the question might be presented." Yet, 
within two years, when the Democrats held two-thirds of the 
seats in both houses of Congress, the Missouri Compromise 
was repealed, with full fore-knowledge that its repeal would 
cause a for greater agitation of the slave question than was 
ever known before. It is no slight aggravation of the Northern 
feeling on this subject that they believe they were betrayed by 
their bought representatives. They have always believed, what 
a distinguished Southern Democrat has recently charged in a 
public speech, that it was the result of a deliberate, selfish 
scheme on the part of I^orthern aspirants to buy Southern 
votes for the Presidency, reckless of the sold rights and out- 
raged feelings of the Is'orth, reckless of the peace and safety 
of the Union. 

AYe have also to remember the more recent causes of exas- 
peration to the people of the l!^orth on this subject. 

The Kansas-Kebraska bill, whilst repealing the Compromise, 
oflTered as a substitute the false but taking dogma of squatter 
sovereignty ; pledging the fidth of the nation that the people 
of the Territory should be left perfectly free to settle the slave 
question for themselves — that is, proclaiming and inviting a 
scramble between the slave and free States for the possession 
of this new State. Accordingly, hopeless as the scramble was 
apparently then, the I^orthern people, as their habit is about 
evei'3i;hing they attempt to carry through, organized some, or, 
at least, one chartered emigrant aid society to promote emi- 



72 DISUNION. 

gration to Kansas from the free States. Simultaneously all 
sorts of associations were organized in Missouri to promote 
Southern emigration to the Territory. But, not content with 
this slow and somewhat uncertain method, the Missourians 
resorted to much more summary and effectual measures. On 
the day appointed to elect members of the Legislature, they 
sent five thousand armed men into the Territory to manage the 
election. Most effectual management they gave it. A Con- 
gressional committee, sent to investigate the affair, report proof 
showing that, out of something over six thousand votes given, 
near five thousand were by non-resident Missourians, who man- 
aged the elections to suit themselves, intimidating the judges 
of the elections into receiving their votes, or compelling them to 
resign, and electing others to suit themselves. The laws passed 
by the Legislature were such as might be expected from a 
body so elected. Not content with establishing slavery, they 
passed various acts having for their undisguised object the 
driving away of the free State voters and preventing others 
from coming. It would be tedious to describe and character- 
ize all these acts. Sufiice it to say that a Democratic Senator 
(Cass) denounced them in the Senate as a disgrace to our coun- 
try and to the enlightened civilized age in which we live. That 
venerable and distinguished statesman. Senator Clayton, of 
Delaware, is also reported to have said that they were so atro- 
cious as fully to justify revolutionary resistance. The House 
of Representatives has pronounced these laws null and void on 
account of the fraud and violence used in electing the Legis- 
lature. The Senate also passed a bill repealing the most ob- 
noxious of those laws ; thus nullifying their own dogma of 
squatter sovereignty, the inauguration of which was their pre- 
text for repealing the Compromise. 

The executive and judicial administration of the Territorial 
Government is reported to have been the counterpart of its 
legislation. Free State men were rigorously prosecuted for 
every the least alleged offence, whilst pro-slaveiy men were 
prosecuted for none, not even the most notorious robbery and 
murder. 

As none of these outrageous proceedings have been rebuked 
by President Pierce, and they were carried on by his subordi- 



DISUNION. 73 

nates, the Nortliern people naturally believe that they have had, 
if not his ex]3ress approbation, at least his culpable connivance ; 
and the whole influence of the Government has been unfairly 
used towards forcing slavery into Kansas. Thus they think 
the Democratic leaders have signalized their want of good 
faith — first, in the repeal of the Compromise; second, in the 
perfidious violation of their solemn pledge to " discountenance 
all agitation of the slave question in or out of Congress ; " and 
third, in the equally perfidious violation of their other pledge, 
to leave the people of Kansas "perfectly free" to settle the 
question for themselves. 

But whatever may be the real sufficiency of the justification 
of the l!»rorth for insisting upon a restoration of the Compro- 
mise, it does not become Mr. Buchanan to deny its sufficiency. 

He, as Senator from Pennsylvania, took an active part in 
the re-enacting and ratifying of the Compromise. In a speech, 
made in the Senate, he expressed his satisfaction with the 
pending measure for annexing Texas, "because it settled the 
question of slavery. It went to re-establish the 3Iissouri Com- 
promise, by fixing a line within which slavery was to be con- 
fined. That controversy had shaken the Union to its centre ; 
but the Compromise, should it now be re-established, would pre- 
vent the recurrence of similar danger. But close it noiv and it 
would be closed forever. Ought any friend of the Union to desire 
to see this question left open ? Was it desirable again to have the 
Missouri question brought home to the people to goad them to fury ? 
That question between those two great interests had been well 
discussed and ivell decided, and from that moment !Mr. Buchanan 
had set down his foot on the solid ground then established, and 
there he would let the question stand forever. Who would complain 
of the terms of that Compromise?'' 

He thus not only justified the legality and justice of the 
original Compromise, but in the presence of Southern Senators 
and of the country, in the very hour of making a new bargain, 
expounded his understanding, and what would be the under- 
standing of the North, as to the true import of this new bar- 
gain. Under the circumstances it was equivalent to a solemn 
public notification in behalf of himself, his State, and all the 
free States, that the new bargain was entered into with the 
10 



74 DISUNION. 

full understanding that it ^^re-established" and ratified the old 
one. 

We of the South always had great difficulty in understand- 
ing the perfect justice of the North in exacting from us the 
original Compromise. But Mr. Buchanan never had any such 
difficulty; he always considered that the ISTorth, in yielding 
her reluctant consent to the admission of Missouri, had ren- 
dered a full and honorahle equivalent. The fact that Louisiana 
and Florida had heen bought with the common funds of the 
whole nation, and the fact that the presence of negro slavery 
was practically almost as strong an interdict against immigra- 
tion from the ISTorth as if it had been expressly prohibited by 
law, fully justified the ISTorth in his opinion. He and they 
thought justice required that a portion of the purchase should 
be set apart for their benefit ; or in other words, that a part 
should be so arranged that emigrants from the ISTorth might 
participate in the benefits of settling the new purchase. That 
there is at least plausibility in this view cannot well be denied 
by those Southern men who, not content with the appropria- 
tion of nearly the whole of Texas to the South, insisted upon 
having the lower half of California appropriated to their espe- 
cial use also, by legislating slavery into it, and that too against 
the express wish of its inhabitants. 

Mr. Buchanan comes home and finds this much-admired, 
much-cherished Compromise has been violated, that it has been 
repealed, and that, too, by the very men with whom he himself 
had negotiated and bargained for its solemn ratification and 
confirmation. This confirming bargain rested upon no equiva- 
lent of doubtful equity. The consideration paid by the JSTorth 
was ample and of the most indisputable equity. When Mis- 
souri applied for admission she was already a part of the 
Union, and her citizens had a most plausible right, under both 
constitutional and treaty guarantees, to demand admission 
without restriction, and without equivalent. 'Not so with 
Texas. She was merely a foreign State, having no constitu- 
tional or treaty rights on which to rest her claim for admis- 
sion. It was a mere question of national policy addressed to 
the discretion of Congress. In the settlement of that ques- 
tion, the IlN'orth had every right to look to its peculiar bearing 



DISUNION. 75 

Oil the ]N'ortli, political or otherwise. She had the most per- 
fect right to demand and receive, as she did, the ratification 
of the Compromise as some small equivalent for her assent to 
that which was deemed so large a hoon to the South. The 
Compromise, as thus ratified, must, in Mr. Buchanan's estima- 
tion, have stood upon an impregnable basis of both law and 
justice. He must have felt himself under peculiar obligations 
so to defend it, for he had been himself instrumental in making 
the bargain, and in getting the plight of Southern faith for its 
observance. 

The breach of faith, as he must have viewed it, was a wrong 
not merely to his State, but also to himself personally. In 
addition to these powerful reasons for denouncing the repeal, 
he found a large majority of the people of his State indig- 
nantly denouncing the supposed perfidy, and only a slender 
minority attempting to excuse it, merely because it was a 
measure of the Democratic party. He found that the people 
of Pennsylvania had elected some two-thirds, or more, of her 
representatives with pledges and instructions to repeal and 
restore the Compromise. What does he do ? Does he place 
himself in the van of his injured fellow-citizens to aid in ob- 
taining redress ? Does he fulminate denunciations against 
those faithless men who, as he must have thought, had thus 
deceived him and the people of his State ? What becomes 
of that firmly-planted foot of his, which he pledged himself 
should rest forever upon the firm ground of the Compromise ? 
Alas ! alas ! for the consistency and pledges of poor politicians. 
No sooner is the Presidential prize held forth to his eager 
grasp than that same firmly-planted foot is lifted up, the Com- 
promise kicked to perdition, and he himself becomes the su- 
perserviceable tool of the Democratic leaders to prevent its 
restoration. He turns his back upon the people of his State, 
to whom he is indebted for so large a bestowal of trust and 
honor, and in this their hour of need and great excitement, 
when so much in want of such an able leader as himself, he 
lends them no helping hand, but goes over to their adversa- 
ries. Recreant to every feeling of affection and gratitude 
toward them, recreant to his own firm, long-cherished convic- 
tions of justice and policy, recreant to his own pledges and 



76 DISUNION. 

his own honor, he becomes an apostate to his principles and a 
political traitor to his State. 

He cannot complain that there is any undue severity in this 
stricture, because he himself has taught us how such conduct 
should be judged. See what he said about the corrupt bar- 
gain with which he charged Clay and Adams : 

" The facts are before the world, that Mr. Clay and his par- 
ticular friends made Mr. Adams President, and that Mr. Adams 
immediately thereafter made Mr. Clay Secretary of State. The 
people will draw their own inferences from such conduct, and 
the circumstances connected with it. They will judge of causes 
from the effects." 

Compare his conduct and test it by this rule. He renounces 
his pledge and his long-cherished principles, and gets the nomi- 
nation. " The people will judge of causes from eftects." Is 
it not clearly proved upon him, by his own rule, that he has 
been guilty of a corrupt bargain — that he has sold himself and 
his State for the nomination ? "Whatever the rule may be 
worth to fix a charge of corruption upon another, there can be 
no denying its correctness in judging his own conduct. 

^0. IV. 

The position of Colonel Fremont as to the mode of obtain- 
ing his nomination is little better than that of Mr. Buchanan, 
though the want of a political record prevents tergiversation 
from being fastened upon him by direct proof. Public confi- 
dence is rightly said to be a thing of slow growth, and whilst 
he has done nothing, literally nothing, to earn confidence either 
in his capacity or integrity as a statesman, he is presented to 
us under circumstances well calculated to create distrust of his 
truthfulness and integrity of character. Born in the South, 
reared in the South, married in the South, and all his rela- 
tions and connexions located in the South, it has an unseemly 
look, the lending himself to Northern extremists to lead a con- 
test against the section of his nativity. A man is excusable 
for not aiding his mother in an unjust quarrel, but not for 
taking active part against her. Such a man is not apt to be 
what Western people call whole-hearted. They suspect him of 
more ambition than patriotism. !N^o right-minded Kentuckian 



DISUNION. 77 

or Tennesseean could be bought into enacting tlie part be is 
now performing. If he believes the South radically wrong in 
the present quarrel, all that it was permissable for him to do 
was to use his influence, if he have any, in setting her right, 
and preventing her being led by mere passion into destructive 
extremes. 

He has adopted, in the platform of his party, an absurd para- 
dox, to which no man reared in the South ever did or ever 
can lionestly give his consent. Ignoring the fact that negro 
slaves were in no way and to no intent parties to the Federal 
compact, but are treated by it as mere property, this new 
dogma attempts to override and overrule the Constitution by 
a false interpretation of a phrase of the Declaration of Inde- 
pendence. Whilst claiming power in Congress to legislate for 
the territories, and insisting on the power to prohibit, yet de- 
nies power to permit slavery in a territory. A grosser absurd- 
ity never sprang from human invention. The power to pro- 
hibit is as well established by legislative precedent, and judicial 
recognition, as any ever exercised by Congress. It rests exclu- 
sively on the unrestricted power to legislate for the territories. 
The correlative power to permit, is a necessary sequence. It 
is part of the general legislative power, because, like the other, 
it is not prohibited. By the then laws of twelve of the thirteen 
States that adopted the Constitution, property in slaves was 
as fully recognized as property in horses. It would be con- 
traiy to eveiy presumption, that there was any tacit or ex- 
pressed limitation of tlie power of Congress over slave property 
in the territories. It is as plenary over that as any other prop- 
erty, and was indisputably so intended. 'No one can believe 
that Fremont honestly entertains a different opinion. His 
pretence of doing so can be viewed no otherwise than as a 
corrupt barter of his principles and opinions for the nomi- 
nation. 

Fremont knows, and the world knows, that he owes his 
nomination to the influence of a set of leading men, eveiy one 
of whom is an abolitionist of the worst stamp — men, like 
Seward and Sumner, who use abolitionism as a means to dis- 
union ; men who hold all law, human and divine, as subordi- 
nate to a higher law which each of them makes for himself; 



78 DISUNION. 

each one being a law unto himself. Appeal to the Constitution 
as sanctioning slavery, they reply their higher law. Appeal to 
Christian revelation as also sanctioning it, they again reply 
their higher law ; and some of them have avowed that, if it 
could be proved that the Supreme Being sanctions it, they 
would renounce Him also ; and, Lucifer-like, dare to tell Him, 
"His evil was not good." Controlled by no moral principle, 
they run a muck against all law and all morals. They justify 
and encourage the stealing of a neighbor's property ; they 
avow that they would put arms into the hands of slaves, and 
encourage them to cut the throats of the whites. In order 
merely to put a reproach on slave-holding, they applaud the 
putting a knife into the hands of a frantic slave-mother and 
inciting her to murder her own infant. They applaud the 
hypocritical pretext with which the act was accompanied, that 
diabolically impious pretext which curdles the blood, the send- 
ing the infant hack to its God — thus insulting and defying Him 
for sending it into the world ; thus rebuking His imputed lack 
of wisdom and justice, telling Him, so ought to be treated the 
infant of every slave-mother He dares send into the world. The 
absence of that moral and legal restraint which characterizes 
these men is evidence of the same moral disorganization or 
malformation which, under other circumstances, produces the 
robber, the pirate, the murderer, the assassin, and the poisoner. 
Each of these also has a higher law of his own ; each is a law 
unto himself. 

Of all the perpetrators of crime, he who by common consent 
has appropriated to himself the highest degree of human odium 
is the poisoner. If the case can be supposed where the poisoner 
could, by the use of poison, produce wide-spread assassination, 
murder, and civil war, would not such a poisoner have attained 
a yet unapproached infamy ? Yet, when calmly scrutinized as 
to possible results and probable motives, it is difficult to dis- 
criminate the moral delinquency of these abolitionists from 
that of the poisoner supposed. They have long devoted all 
their talents to the generating feelings of the keenest jealousy 
and animosity between tKe people of the North and the South. 
To what end ; for men of their intelligence always have an 
object for persevering effort ? Not for the benefit of the slaves 



DISUNION. 79 

themselves, for it has been proved to them, in a thousand ways, 
that such efforts do hut clamp the chains still closer and render 
the treatment of the slaves more rigorous. Not for any benefit 
to the free States, for they are as fully aware as ourselves of 
our unfortunate condition of playing the part of slave-drivers 
for the special commercial benefit of the free States, and to 
the obvious commercial detriment of the slave States. Men 
of their discernment can have but one motive, and that is dis- 
union and civil war. They cannot think they will benefit the 
blacks. They admit that it will not benefit, but will greatly 
injure the North. Why then promote disunion and civil war? 
What is their motive ? What can it be but the hope of gloat- 
ing over a servile war, which perchance may ensue, and which 
will cause an indiscriminate massacre of both blacks and whites? 
The Supreme Being is too tardy for them in punishing the 
crimes of slaver}^, which He has so long permitted, even from 
the beginning of history ; He won't do what they want ; they 
usurp His attributes, undertake to wreak what they think ought 
to be His vengeance ; and, lest the oppressors should go un- 
punished, they tiy to hurl a common destruction both upon 
the oppressors and the oppressed. Such may not be their mo- 
tive ; there may be some grand ulterior result which nobody 
can get a glimpse of, that, weighed in the scales of a cold- 
blooded philosophy, may seem worth procuring at even the 
price of all these horrors. If so, the final Judge will know 
whether to treat it as a case of lunacy or wickedness. But if 
that other be their real motive, all pandemonium will be 
searched in vain for the parallel of such cold-blooded atrocity. 
The imagination of the great poet, who exhausted this world 
and invented a new one for the full play of genius, never tow- 
ered to such a height of iniquity. The poet's arch-fiend him- 
self had a motive above the mere love of mischief 

The people of the North must cleanse themselves from the 
shame of breeding, educating, and countenancing such men as 
these, or cease to upbraid us with that unavoidable curse of 
negro slavery which their own venal ancestors mainly assisted 
in inflicting upon the South. 

It is impossible that Fremont can have any s^inpathy with 
these men, and, by suffering himself to be so used, he subjects 



80 DISUNION. 

himself to the suspicion that he also has sold himself for the 
nomination. It is unfortunate for him that they, and others 
like them, were the most active opponents of the repeal in 
Congress, also in getting up the Northern excitement, in or- 
ganizing his party, and in procuring his nomination. What 
secret pledges he may have given them the world knows not ; 
that he has given none, his own laxity of political morals 
affords anything but a guarantee. Hence it is from suspicion 
and distrust of these men and their necessary influence over 
him, that the ISTorth manifests nothing like the same unanimity 
in opposition to the repeal that it did to the admission of Mis- 
souri. Hence, also, old Whigs at the North, who have been 
warring with the Democracy for twenty-five years, will not aid 
him, though they know their aid would crush the Democracy 
into irretrievable defeat. This, too, though they view the De- 
mocratic leaders as a band of incompetent and corrupt de- 
structives, who have mismanaged and corrupted the govern- 
ment in every way, who have suffered the party to be ruled 
by a set of reckless demagogues, who have rode the party 
itself to perdition, destroyed every conservative principle in 
our State Constitutions, and promise to do the same by the 
Federal Constitution. 

It is very improbable that the North will forbear to press its 
quarrel with the Democratic leaders until it has righted the 
wrong it thinks has been done, and requited the perfidious 
breaches of faith with which it charges those leaders. So long 
as the contest remains exclusively between the North and those 
leaders, no sane man can believe it will stop short of that point. 
On the other hand, when it comes to be developed, as it soon 
will be, that the Democracy has no representation in Congress 
from the North except a few Senators who will misrepresent 
their constituents, that party will be, to all intents, as purely 
sectional as the Republican party. It will be a merely slave 
State party, under the domination of Southern agitators and 
extremists, who do not disguise their disinclination to any 
amicable adjustment of the dispute, and who give every reason 
to suspect them of being secessionists at heart. 

Let either of these two parties succeed in the Presidential 
contest, what possible hope can there be that the controversy 



DISUNION. 81 

will be settled during tlie next Presidential term ? Yet upon 
the settlement of the controversy depends certainly the peace, 
and perhaps, also, the salvation of the Union. If protracted 
for another four years, it may become so embittered as to be 
beyond adjustment. 

The important question then comes up for most serious con- 
sideration — can the Union survive the prolongation of the con- 
test during another four years ? 

There seems to be no salvation for it, unless the discreet, 
Union-loving people of the Middle States, who have but little 
sympathy with extremists, either iSTorth or South, can be aroused 
to a proper §ense of our danger, and by a vigorous effort secure 
the election of Fillmore, or, in the effort to do so, organize a 
strong conservative party. His election would be hailed every- 
where as a good omen of returning peace. Neither of the sec- 
tional parties would have to submit to the mortification of being 
overcome by their adversaries. The people of both sections 
would have full confidence in the fairness with which he would 
administer the affairs of Kansas. Under such an administra- 
tion, after the people of the Territory had fairly expressed their 
preference for or against slavery, the good men of all sections 
would concur in having that will carried into effect. Thus, 
and thus only, can the strife be closed. The Korth would have 
no confidence in the fairness of any such mode of settlement 
under the administration of Buchanan ; nor would the South 
have any confidence in one which was accomplished under the 
administration of Fremont. 

What then is the duty of the States in the valley of the 
Ohio, indeed of all the Middle States toward the Union and 
themselves in the present great crisis ? It is to manifest their 
determination to preserve the Union by adhering to each other; 
to refuse to take part in the game of showing solid fronts in a 
sectional contest ; to side with neither of the extremes, but by 
an intermediate course to manifest a determination to effect a 
permanent pacification of the Union ; and, if that cannot at 
once be accomplished, to manifest the foil}' of looking to dis- 
union as a possible remedy for any supposed grievance. If it 
be too late uoaV to bring about such a combination and expres- 
sion of sentiment from all the five States of the Ohio valley, still 
11 



82 DISUNION. 

Kentucky and her twin-sister, Tennessee, by pursuing this 
course, can place themselves in an attitude to conciliate the 
other three States, and bring them all together, after the pre- 
sent excitement, to meet the undisguised question of union or 
disunion, come when it may. When properly considered, that 
is the path of duty and interest. Let us all strive with a will to 
place Kentucky in her proper position, and keep her there to 
meet the coming danger. Geographical position, identity of 
habits, manners, feelings, prejudices, and interests, have bound 
Kentucky and Tennessee so closely together that their ultimate 
destiny must always be the same. The one cannot go where 
the other will not follow. It is not too late yet to arouse the 
people of these two States to a sense of the necessity of keep- 
ing themselves out of the present sectional controversy, and, 
by siding with neither, keep themselves in the attitude to per- 
form the office of arbitrators and conciliators between the 
Korth and the South. This can be done, and can only be'done, 
by their voting for Fillmore. Two other Border Slave States, 
Maryland and Delaware, according to every probability, will do 
the same. These four States pursuing this course, and keep- 
ing themselves cool during the conflict of the next four years, 
the Union may be saved, even though Fillmore should get the 
vote of no other State. Here, then, is adequate motive for 
every patriot to exert himself to secure the vote of those States. 
Every patriot out of them should give Fillmore his vote, if for 
no other object, for the purpose of showing the conservative, 
Union-loving strength in every section, and keeping it together 
for future use, in time of need. 

Let the present contest, however, result as it may, there are 
well-known elements of strength for a great conservative 
Union-loving party, whenever the undisguised question of 
union or disunion is presented, which gives hopeful encourage- 
ment for the present organization and exertions of such a 
party. "What every good citizen has now to do is to keep up 
such a visible Union-loving show of strength as to prevent the 
Union from being broken up suddenly, under the momentary 
impulse of blind, inconsiderate passion. Give the nation cool- 
ing time, give it opportunity to act advisedly upon deliberate 
consideration, and the Union is still indestructible. May God 

FOEEVER KEEP IT SO. 



DISUNION, 83 



CHAPTER VII. 

DISUNION. 

Part of a Speech delivered at a public dinner given to Governor MoreJiead, in 
Louisville, October, 1859. 

Our recently elected Democratic Governor tells us, in his 
patriotic inaugural address, that Kentucky is firmly united in 
opposition to the African slave-trade, also to disunion or any 
disunion tendency. We of the Oj)position say amen to all that. 
On those questions we believe there is no difference of opinion 
among Kentuckians. They are topics upon which Democrats 
and Oppositionists can safely and appropriately commune 
together, even upon a festive occasion like this. 

His Excellency tells us that it is time the pernicious agita- 
tion of slavery abstractions should cease. We of the Opposi- 
tion so entirely concur in this, that we think that agitation 
should never have commenced ; that it has been kept up for 
no beneficial purpose, and, whilst fraught with national evil, 
its practical result has been nothing of substantial benefit to 
either section. It found us a harmonious, contented, happy 
people, and has sectionalized us into a querulous, discontented, 
jealous, jarring nation. If the cotemporaneous declarations 
of very many eminent Southern men can be credited, it brought 
us, at the last Presidential election, to the very verge of civil 
war and disunion. 

The Governor tells us and reiterates it, that tJie Union is in 
danger. He says the position of Kentucky is to be " ever true 
and loyal to the Union ; " that with her " seven hundred miles 
of freesoil frontier, she would become, in the event of disunion, 
the scene of conflicts horrible to contemplate ; that she would 
be re-baptized in fire and blood with her significant title of 
the dark and bloods/ ground." 

Forcibly as he puts this, he has done it none too strongly. 
What he says is painfully true. Kentucky would become the 



84 DISUNION. 

Alsace of America — tlie battle-field of hostile nations. Her 
river towns would be laid in ashes, and lier interior crossed and 
recrossed with those broad tracks of ruin which hostile armies 
leave upon their trail. For true as it is that no quarrels are 
ever so bitter as family quarrels, it is equally true no hostility 
is so insatiate and relentless, as warfare between men of the 
same nation, or between fragments of what were once the same 
nation. The declaration of the fact from such a quarter that 
the Union is in danger, is therefore of startling interest to Ken- 
tuckians. Recklessly and carelessly to leave our State in the 
presence of such a peril is what no Kentuckiau would do. His 
Excellency, true to the obligations of his birth and position, 
tells us that, " regarding the Union as the rock of our safety 
and the only hope of mankind, he mil cling to it more closely 
now that it is in danger." He pledges his party to do the 
same. He claims it as the very mission of the Democratic 
party to save the Union. We who are not of that party, hail 
these declarations with great pleasure, and return heartfelt 
thanks for their utterance. We can assure him in return, that 
if, in carrying out his patriotic purpose, he shall find anything 
like faltering or lack of support in his own party, we of the 
Opposition will unanimously back him, in whatever he does 
toward "clinging more closely to that great rock of our safety." 
Further, if we can be permitted to say it without offence, we 
shall keep this pledge in fond remembrance, holding him and 
his party strictly to its fulfilment. 

It is known that disunion sentiments have for years past 
been industriously disseminated through the more Southern 
States. They have obtained most reception among the nine 
cotton States. Yery many of their intelligent and influential 
citizens proclaim the opinion that those States will be benefited 
by severance into a separate confederacy. On the happening 
of that not improbable event, the election of a Republican 
President, it is believed a formidable or persevering efltbrt will 
be made to induce those States to secede. Giving the insti- 
gators of the movement credit for common sense, they must 
be acting under the belief that they can compel or persuade 
Kentucky, Tennessee, and Missouri to go with them. Their 
only means of coercion consists in the fact that Louisiana holds 



DISUNION. 85 

and claims tlie principal outlet for most of our exports. Before 
they act upon the idea that they own the delta of the Missis- 
sippi, and attempt to separate it from the rest of the Mississippi 
valley, they should remember that Kentucky, Tennessee, and 
Missouri, backed by the seven free States of the valley, have a 
word to say in that matter ; which word will be, it shall not he 
done. Those ten States may not descend from the position of 
their vast strength to utter a threat ; but whenever it becomes 
necessary for them to speak, and they do speak, it may be con- 
sidered as perfectly certain their fiat vnW be, that the delta 
shall not be separated from the rest of the valley, and that 
those ten States have not the slightest idea of going out of the 
Union. The valley having now fourteen States, with the near 
prospect of two more, will, before ten years, contain a majority 
of the population of the whole nation. From that time forth, 
its people will have in their hands the controlling power over 
this great nation, with the ability to shape its destiny to suit 
themselves. 

We have heard of late a great deal about the " manifest des- 
tiny" of our nation. "Manifest destiny" men differ as to the 
true meaning of the phrase. With most it means any kind 
of gainful robbery from weak and defenceless neighbors. But 
an eminent Northern politician says he is opposed to indis- 
criminate petty larceny by piratical gangs. He is only for 
grand robbery under the sanction of the Government. Down 
South, " manifest destiny" means the acquisition of only such 
territory as will suit the spread of negro slavery. Another 
popular politician, who is now riding his so-called popular 
sovereignty hobby througli the West, tells us that " manifest 
destiny" means the propagation of our political Koran with 
the scimetar, till we have acquired all Mexico, all Central 
America, and all the West India Islands. Believing, as I do, 
that we have greatly too much territory, vastly more than we 
do or can properly govern, and that the difficulty of its gov- 
ernment will be terribly enhanced fifty years hence, when we 
shall have a population of one hundred and twenty millions, 
I, of course, have no respect for this "manifest destiny" doc- 
trine; on the contrary', think such wild, ludicrously absurd 
vagaries meiit only contempt and abhorrence. The only 



86 DISUNION. 

" manifest destiny" deserving our faitli, is that wliicli lias been 
so legibly written by the Ruler of all destiny in the geographi- 
cal configuration of the great valley of the jMississippi. The 
destiny thus proclaimed is, that the valley shall remain forever 
one and inseparable, under the control of one and the same 
nation. It does not mean that we will re-conquer or re-accj[uire 
the delta, if once separated, but it means that the delta shall 
never be separated from us by foreign or domestic foes. Such 
is the true " manifest des'tiny" of this valley. Connected with 
it, there is a. great and brilliant national hope, if not reason, 
for a firm belief that so long as the valley remains undivided, the 
Union will he indestructible. If we needed any illustration of 
the great importance which our valley has already attained, it 
can be found in the vast sums expended upon canals and rail- 
roads, by commercial rivalry, in competition for our trade, 
without a dollar of cost to ourselves, who are so infinitely 
benefited by these roads and canals. These unerring com- 
mercial instincts, thus equally manifested from the Korth, the 
Middle, and the South, point out what is, or soon will be, the 
great centre of population and power. The enduring bonds 
of commercial interest will ever bind the East, north of the 
Potomac, to our valley. All the fanatics in Christendom can- 
not sever those bonds, or tear it from us. So long, therefore, 
as we preserve the vallej^ from division, the Union will he inde- 
structihle. Who, then, can doubt the stern response that will 
be made to any proposition to separate the delta from the rest 
of the valley ? "With strength now sufiicient, or which soon 
will be sufficient, to control the destiny of the whole nation, 
how can it be supposed that we will permit ourselves to be 
controlled to our perdition, by so small a part as the people of 
Louisiana and Mississippi ? We shall do nothing so suicidal 
as that, but pursuing our own peculiar local " manifest des- 
tiny," we shall keep the Union together for at least fifty years 
longer, when natural increase alone will have made ours the 
most powerful nation on the globe. This, too, without the 
pursuit of any of that spurious, bastard " manifest destiny" 
which would earn. for us the enduring odium due to a nation 
of pirates and robbers. Clinging to the precepts of the great 
founders of the Republic, we will show to what true greatness 



DISUNION. 87 

and glory a people can attain by " extending equal and exact 
justice to all other nations, whilst having entangling alliances 
with none." Such is the brilliant position we can achieve for 
our country, whilst enjoying the blessings of a well-ordered 
liberty, and keeping ourselves guiltless of any national crime. 
Let us point the rising generation to that, as a consummation 
worthy to inspire all the energies and fulfil the great desires 
of the most chivalric devotion to the cause of country, to the 
cause of human progress, or to the great cause of civil liberty. 

The power of persuasion, on the part of these disunionists, 
to seduce us into a new Southern Confederacy, is on a par with 
their power of coercion. With no commercial harbor that can 
float a frigate, and with no power to create a commercial ma- 
rine, the cotton States can have no hope of ever possessing a 
naval marine adequate to the protection of their commerce 
against the most petty naval power. Some of these disunion- 
ists, whilst compelled to concede, attempt to obviate this disa- 
greeable fact, by saying they would buy protection from some 
foreign power. "What a prospect this, for seducing us into 
their ranks. We are to give up our enviable central position 
in this magnificent self-protecting Republic, which holds its 
head high among the great powers of the world, to become 
the frontier appendage of a petty confederacy^ that will have to 
buy protection from a foreign nation. 

The supposed advantages to themselves from disunion are 
altogether delusive ; but, for us, there would not be even the 
delusive hope of a single benefit. Their alleged grievances 
against the Federal Government are altogether imaginary, but 
be they few or many, real or imaginary, we have none, literally 
none whatever. We know and feel the influence of the Union 
only in its superabounding benefits. It has enabled the na- 
tiou, whilst enjoying the priceless benefits of civil liberty, to 
grow in population, wealth, power, civilization, and refine- 
ment with a rapidity unparalleled in the annals of mankind. 
We are still in the full fruition of a faultless national felicity ; 
the unruffled current of our prosperity still reflects the un- 
clouded heaven of our hopes ; the bright sunshine of our yes- 
terdays and of our to-day gives goodly promise of a still more 
glorious to-morrow. In despite all this, we are asked to aid 



m DISUNION. 

in breaking up that glorious Union in whicli are garnered all 
our patriotic affections, all our pride, all our strength, all our 
prosperity, all our hope, and in which we must live or know 
no prosperous national life. 

Henry Clay was asked "when he would consent to dis- 
union?" His memorable response was, never, never, no 
NEVER. Emphatic and comprehensive as that response was, 
we still prefer to it, that which had been previously given by 
another distinguished Kentuckian to a similar question. At 
a caucus of Southern members of Congress, that gentleman 
was publicly asked whether, in a certain contingency, Ken- 
tuckians would not go for disunion. He promptly replied : 
^'No, sir. Kentuckians view disunion as itself, the greatest 
of evils, and as a remedy for nothing." That is the true Ken- 
tucky doctrine, and it is highly honorable to that gentleman, 
that his instincts, or his patriot training, enabled him to give it 
such prompt utterance. I have long wished for an occasion 
publicly to thank him, in behalf of all Kentucky, for that 
response. In doing so now, you will be pleased to learn, that 
the person to whom those thanks are due, is the worthy gen- 
tleman whose public services and private worth are the occa- 
sion of this festival. The sentiment he uttered should pene- 
trate the mind, and live in the remembrance of every Ken- 
tuckian. Permit me, then, in honor of him who first uttered 
it, to propose for your approval, the sentiment : 

Disunion — The greatest of evils — a remedy for nothing. 



THE CRISIS AND ITS TREATMENT. 89 



CHAPTER VIII. 

THE CRISIS AND ITS TREAT xM EN T. 
Part of a Letter to the Neio York Times, January 2G, 18G0. 

Aiming at the utmost brevity, these remarks will be con- 
fined to a short notice of the national danger, its cause, and the 
remedy. 

The present peril of the Union is both real and great. The 
Governor of Virginia, in his recent message, declares that dis- 
union will be the immediate result of an election of a President 
by the Republican party. This declaration is the more sig- 
nificant, the more to be heeded, on account of the man from 
whom it comes. He is no intemperate fire-eater ; but one 
who, in a long political career, has earned reputation for tem- 
perate, considerate conservatism. Such a man would not 
make the declaration, unless well convinced that it fairly 
represented the will of a large majority of the people of Vir- 
ginia. The Governors of most of the cotton States have used 
similar language, which has been responded to by their Legis- 
latures in terms equally strong. The only difference in the 
language used by the Democratic Senators and Representatives 
of the Southern States has been, that whilst some of them 
point to the election of a Republican as only the precursor of 
immediate secession, the others say that the South will forci- 
bly resist the inauguration of a Republican President. 

With all these declarations before us, it would be the ex- 
treme of folly not to believe that the Democratic leaders, who 
have the political control of Virginia and the nine cotton 
States, do intend, by concerted action, to accomplish at least 
the peaceable secession of those ten States, if the Republican 
party succeeds in the election. "With this belief, accompanied 
with the inference of a full conviction among themselves of 
their power to accomplish what they threaten, we must inquire 
12 



90 THE CRISIS AND ITS TREATMENT. 

as to tlie probable occurrence of the event, the happening of 
which they make the only contingency between us and na- 
tional destruction. 

The results of the more recent elections all tend to prove 
that California and Oregon are the only free States upon which 
the Democracy can rely with any degree of certainty. The 
consequence is, that from any calculation based upon apparent 
or manifested strength of parties, the Republican candidate 
must be elected. 

Assuming the election of a Republican, the question then 
is, will disunion follow ? Perhaps not immediately. Certainly 
not immediately, if there be any general consultation among 
all the slave States. The probable result of such consultation 
would be to wait for what they call an overt act. Kentucky, 
Tennessee, Maryland, and Delaware would be so firmly op- 
posed to disunion that their earnest remonstrances might induce 
the others to pause. It would, however, be only a pause, a 
mere postponement of the evil. If the Republican President 
is compelled to administer the Government, as he probably 
will, without the aid of a single Southerner of high character 
and standing in the Cabinet, the Union will almost certainly 
be dissolved. The five Border Slave States, so far from being 
able to prevent the other ten from leaving the Union, will be 
much more apt to be dragged out themselves. It must be 
remembered that there are in the South a large number of 
intelligent, influential men who have convinced themselves 
that disunion would greatly promote the interests of their 
States. They have been industriously and perseveringly 
working for the accomplishment of that end for twenty or 
thirty years. They will take good care that the difliculty be- 
tween the sections shall be left to no peaceable solution. They 
will provoke in every way a bloody collision with the Federal 
authorities. What will be the effect of such collision, on any 
large scale, with the excitable people of Kentucky and Ten- 
nessee, no one can certainly foreknow. Their young men 
have a strong proclivity for pitching into any sort of fight that 
may happen to be going on, and it is very doubtful whether 
their older men would have sufficient influence to restrain 
them. There may be gasconade, and the hope of influencing 



THE CRISIS AND ITS TREATMENT. 91 

the election at the ^STorth, with some of those who have joined 
in uttering these threats, but those who are in earnest will 
hold them bound thereby, and urge action as necessary to 
Southern honor, and to prevent the whole South from falling 
into contempt. 

'No satisfactory or reliable view can be had of the crisis with- 
out taking disunion as a proximate danger. The election of 
the Democratic candidate even would be but a postponement, 
not a permanent removal of that danger. A protracted sec- 
tional strife, whilst one of the parties is principally under the 
guidance of disunionists, must have disunion for its result, and 
that, too, at no distant day. The only solution of the difficulty 
would be found in the voluntary disbanding of both the Demo- 
cratic and Republican parties ; for so long as one of them 
remains in battle array the other will be sure to do the same. 
Every one knows how idle it would be to hope for such a solu- 
tion as that. There is no hope unless the nation can be drawn 
from the grasp of those two parties. To accomplish that, there 
is but one mode, and that is by an amendment of the Consti- 
tution to prevent the election of next fall, with all its hazards, 
from taking place. 

In attempting a remedy we must first find out the cause of 
the disease. The seat and cause of the present disease of our 
national body politic cannot be better delineated than in the 
following resolution recently adopted by the Legislature of 
Tennessee : 

'■'•Resolved, That in the opinion of this General Assembly, all 
the evils growing out of the intense slavery agitation — all the 
discord, alienation and bitter hatred now growing and extend- 
ing between ITorth and South, are the legitimate fruit, not of 
any necessary and 'irrepressible conflict' between free and 
slave labor, but of a conflict between rival aspirants in the race 
of ambition, ITorth and South, urged on by an inordinate greed 
of official power and plunder; a conflict that can only be 
repressed by a powerful and successful effort of the friends of 
the Union to rouse the people to a conviction of the reality and 
magnitude of the impending dangers to its existence." 

There are few men of intelligence, not actively and promi- 
nently engaged in party politics, who will not readily yield 



92 THE CKISIS AND ITS TREATMENT. 

their assent to the perfect truth of the important proposition 
enunciated in this resolution. It has been the strife of poli- 
ticians for the Presidency, and that alone, which has brought 
the nation into its present perilous condition. They have suc- 
ceeded, by their arts and management, in playing upon that 
human foible, sectional jealousy ; in arraying more than two- 
thirds of the nation into one or the other of their parties, in 
what has become a purely sectional strife, having a mere ab- 
straction for the ostensible object of contest. There is no 
foreign slave territory to be acquired by means to which the 
nation is at all likely to consent, and there is not a foot of our 
own territory now free upon which slavery could be established, 
even though the Government were to offer a premium of two 
hundred dollars a head for every slave carried there. Then 
there is no need to fear the slave propaganda, nor need for a 
party to keep it in check. The whole platform of the Repub- 
lican party is functus officio, and by its unanimous vote on the 
Crittenden amendment of the Kansas bill there is no just 
reason to fear that the party means to adopt the non-admis- 
sion of any more slave States as part of its platform ; and it 
having repudiated again and again, in all forms, the idea of 
aggression upon slavery within the States, there can be no fear 
of its action, or need for another party to keep it in check. 
The whole matter pretended to be in contest between the two 
parties is brought down to a mere abstraction, of no practical 
bearing or important influence upon the interests of any section 
of the Union. 

There is, therefore, no reason why the nation should not ob- 
tain peace and restoration to that harmony so essential to its 
prosperity, if not indispensable to its very preservation, by 
withdrawing from their scramble the real matter of contest 
between them. 

Let us, then, immediately have an amendment of the Con- 
stitution, to supersede the hazardous Presidential election of 
next fall, and for permanent security aginst the recurrence of 
another like peril, to place the Presidency out of the reach of 
party combinations. 

To this end let us obtain signatures from all men of all par- 
ties not actively engaged in this party contest, instructing Con- 



THE CRISIS AND ITS TREATMENT. 93 

gress to obtain such an amendment to the mode of electing our 
Presidents, provided it be done without infringement upon the 
great cardinal principle of a republic, which recognizes the 
sovereignty of the people over their own government. That 
this can be done, we have the published opinions of some 
among the dead of the wisest men the nation has ever pro- 
duced, and the unpublished opinions of some of the most 
enlightened and experienced among those now living. Put 
Congress upon the task, set the inventive talent of the nation 
to work, and the true, best plan for accomplishing this object 
will soon be discovered. Present Congress with the memorials 
of half a million of intelligent men from every quarter of the 
country, without regard to their present party ties, and our 
politicians will feel compelled to lay down their arms to give 
peace, permanent peace, from their ever-recurring, never-ceas- 
ing, pernicious, and perilous scrambles for the office of Presi- 
dent. The national peril is greater, the need of help from 
eveiy citizen is greater, than if we were threatened with inva- 
sion from a powerful foreign enemy. Will not every patriot 
lend his active aid to the accomplishment of so great a work? 
The success in getting rid of the next election requires speedy 
action. Success in obtaining signatures in any one city will 
encourage co-operation, and awaken the active industry which 
is alone necessary for obtaining them in every city, town, and 
village in the nation. 

The following is a brief sketch of a plan for obtaining our 
Presidents without the intervention of political parties, which 
has had the benefit of much intelligent scrutiny. Let the 
people of each State elect two or more Electors, in proportion 
to population, so as to constitute, in all, a College of about fifty 
members, upon the basis of our present population. The Elect- 
ors to be arranged in the alphabetical order of their names, 
and then divided in that order into four, five, or six classes. 
The members of each class to select an Elector from that next 
succeeding it, except the last, which shall make its selection 
from the first class. From the four, five, or six Electors thus 
put in nomination, the College to designate a President by 
some plan depending mainly on lot. 

This plan is presented, not as the best or only true one, but 



94 PLAN FOR OBTAIXIXG OUR PRESIDENTS. 

merely as a specimen of tlie facility with which a competent 
President can be obtained, without having the office within 
the reach of party combinations, and without violation to any 
principle of republican government. 

The time is deemed propitious for obtaining, from the patriot- 
ism of our politicians, such an inestimable boon to our countiy, 
provided they can be made to know that such an amendment 
will be acceptable to the nation. They must all feel great 
uncertainty as to the result of the next election ; that party 
conflicts have already been carried vastly too far, and if not 
stopped, that their further progress must be accompanied with 
the gravest peril to the nation. 



CHAPTER IX. 

1859. 

A PLAN FOR OBTAINING OUR PRESIDENTS WITHOUT 
THE INTERVENTION OF POLITICAL PARTIES. 

The following is the remodel of a plan recommended in a series of letters, pub- 
lished in 1840, which was a modification of one previously stibmitted to Con- 
gress by Senator Hillhouse, of Connecticut. {See those letters, post.) 

Amend the Constitution so as to procure the formation of 
an Electoral College, and an election of President and Vice- 
President, substantially as follows : 

1. The people of the States having less than a million popu- 
lation, to elect one ; those with a million, but less than two 
millions, to elect two ; those with two, but less than three mil- 
lions, to elect three ; those with three, but less than four mil- 
lions, to elect four ; and those having four millions, to elect five 
Electors. 

2. The Chief Justice, or Speaker of the Senate, or Speaker 
of the House of Representatives, to be the presiding officer of 



PLAN FOR OBTAINING OUR PRESIDENTS. 95 

the Electoral College tlius formed, aiid have the casting vote 
in all cases of tie. 

3. The Electors to be listed in the alphabetical order of their 
names ; and arranged, according to that order, into six classes, 
as nearly equal in numbers as may be, and numbered from one 
to six. Any surplus numbers to be distributed among the 
classes by lot. 

4. Class one to nominate an Elector from class two ; the 
latter from class three ; the latter from class four ; the latter 
from class five ; the latter from class six, which shall nominate 
from class one. 

5. From the six Electors thus put in nomination, two to be 
drawn by lot ; from whom the College to elect one for Presi- 
dent, and the other to be the Vice-President. 

6. ISTo office to be incompatible with that of Elector. 

On the basis of the next census, the College thus formed 
would contain about fifty members. On that basis, the relative 
electoral power of New York would be reduced from a seventh 
to a tenth, or about two-fiftieths of the College. That of Ken- 
tuck}^, and other States of her class, would be reduced from a 
twentieth to a twenty-fifth. The gain would go, as it should, 
to the twenty-odd smaller States, most of which will increase 
with great rapidity durmg the next decade, and all of which 
will be entitled to that compensation for the loss of the vote 
by States when, under the present s^^stem, the election devolves 
on the House of Representatives. 

. Under this plan an active emulation would prompt the peo- 
ple of each State to send to the College their very best men, 
thereby to increase the chance of the Presidency for their 
State. Tlie Electors thus put in nomination would be six men, 
culled from the selected wisdom and worth of the whole na- 
tion. Either of the six ought to be equal, if not superior, in 
qualification to any President we have had for the last thirty 
years, or are likely to obtain under the present system. 

The plan, though nominally an amendment, would, in efiect, 
be rather a restoration of the Constitution to its original in- 
tent. By the simple process of requiring pledges from the 
Electors, as to who they will vote for as President, the whole 
scheme of the Constitution has been perverted, and the elec- 



90 PLAN FOR OBTAINING OUR PRESIDENTS. 

tion rendered purely popular. Tliis is so entirely the fact, tliat 
tlie intervention of Electors might be wholly dispensed witli 
without producing any material change in the system. Such 
was not the intention of the Convention. It was not contem- 
plated that the President should be elected directly by the 
people. A proposition to that effect received only one vote. 
It was intended that the people should confide to uncommitted 
Electors, chosen by them, the power of electing the President ; 
and all the well-foreseen evils of a direct popular election were 
to be thereby avoided. But its practical operation being the 
reverse of this, it may well be said that the proposed plan is 
not so much a reformation as a restoration of the Constitution. 
Considerate men have long desired some mode of obtaining 
our Presidents, which, without infringing any radical principle 
of republicanism, would relieve us from the many evils of the 
present system. Tlie Hillhouse plan selected the President by 
lot from the class of Senators having the shortest term to serve. 
Much as this left to mere blind chance, yet it received the de- 
cided approval of many eminent men, and among them Chief 
Justice Marshall, and the distinguished William H. Crawford, 
of Georgia. The proposition of 1840 was to take seven by lot 
from a College constituted as now suggested, and the College 
to elect a President from these seven. Yielding to the opinions 
of such talented men as the late Roger M. Sherman and John 
C. Calhoun, that this would still leave the office too much 
within the probable reach of parties, the plan has been modi- 
fied as now presented, to meet that objection. As it now 
stands, whilst leaving next to nothing of probable prejudice 
to mere chance, it securely places the office beyond the reach 
of party combinations. The worst result of the worst luck 
could not well give us less than a very competent President, 
and though the person so obtained might unavoidably always 
be a party man, yet the chances of his being of any pai-ticular 
party would be so small as to preclude much eflibrt to obtain 
the office by party operation. The office would not be worth 
much effort, for though our Presidents now go into office 
pledged to sustain the "spoils-principle," under this plan they 
would be pledged to break it up and to an equitable distribu- 
tion of offices, outside the Cabinet, among all parties. The 



PLAN FOR OBTAIXIXG OUR PRESIDENTS. 97 

public sentiment that will procure the adoption of the plan 
will enfdrce such pledges and their fair observance. 

The benefit to be derived from the proposed plan is mainly 
the avoidance of the manifold evils necessarily resulting from 
the present mode of election. Even the principal of those evils 
can here be only briefly sketched. 

1. It promotes the formation of parties, and incites that bane of 
all Republics, party spirit. 

The first contest for the Presidency gave us the old Demo- 
cratic and Federal parties, with their twenty years' bitter war- 
fare. The second gave us the modern Democrats and Whigs, 
with their twenty years' rancorous hate and struggle. 

Sectional hate and jealousy, whilst the most dangerous of 
our foibles, are among the most available for getting up and 
keeping up party feuds. They have been repeatedly roused 
and played upon in contests for the Presidency, and even to 
appease the vengeance of disappointed aspirants. Jealousy of 
superior Southern influence in President-making, as manifested 
in the monopoly of the oflice for eight out of nine terms, caused 
ITorthern politicians to insist on the "Missouri restriction." 
The combining influences of a community of interest in slave 
property was the grievance. To arouse JSTorthern jealousy and 
prejudice against negro slavery was the promptly-applied re- 
medy. The excitement caused was great, but passed ofi" with- 
out much mischief, because it occurred during the Monroe 
" era of good feeling." The principal damage was the political 
death of the few Northern Representatives who had the self- 
sacrificing patriotism to sanction the Missouri Compromise. 

It is notorious that the avenging of Mr. Van Buren's sujd- 
posed wrongs and disappointments in reference to the Presi- 
dency caused the organization of the first distinct Free-soil 
party. Who will say that the avenging of similar wrongs to- 
ward Mr. Adams and Mr. Calhoun had nothing to do with the 
rousing of that sectional animosity from which the nation has 
been so long severely suflering, and from which so much mis- 
chief is apprehended ? One-half the nation suspects that bids 
for the Presidency, on the part of [N'orthern aspirants, had veiy 
much to do with the repeal of the Missouri Compromise. False 
and even calumnious as this suspicion may be, its existence 
13 



98 PLAN FOR OBTAINING OUR PRESIDENTS. 

proves liow prevalent is tlie belief of tlie injuriously-disturb- 
ing influence that President-making may have, and f)robably 
does have, on the most important legislation. Nor is that in- 
fluence confined to Congress ; it equally pervades most of the 
State Legislatures. Illustrative facts to prove its disturbing 
influence on National and State legislation would fill a 
volume. 

2. It fosters the proscriptive spoils-principle. 

It is useless now to trace the introduction and dissemination 
of that principle for the purpose of crimination against any 
particular party, for all our parties have more or less partici- 
pated in its once-odious practice. We must go higher for the 
source of the fault. It lies in the Constitution itself, however 
contrary to its true spirit. It is but an inevitable, though un- 
anticipated incident to the mode of electing Presidents. The 
members of a party that assist in winning the Presidency will 
have their pay ; they will sufifer no denial. The corruption 
that the practice leads to is of little moment in party estima- 
tion, when compared with party success. 

3. It compels a parti/ administration of the Grovemment, and 
parti/ administration being necessarily corrupt, it makes the Gov- 
ernment unavoidably and incurably corrupt, 

A distinguished Democratic Senator avowed it to the Sejiate 
as his opinion that ours has already become "^Ae most corrupt 
Grovemment in the world." Other Senators promptly corrobo- 
rated the opinion, as being theirs also, whilst none denied the 
truth of the charge. Whatever difterence of opinion there 
may be among intelligent men as to the strict verity of the 
charge in all its breadth, none will deny that the Government 
is fast tending to that foul point of degradation. If it has 
even now, among civilized nations, any rivals for that bad emi- 
nence, they must be found among some of our City Govern- 
ments, who are equally cursed with party scrambles for their 
spoils. 

Not only have the party debts contracted in a Presidential 
election to be paid, but party support at the next election has 
to be bought. These two party necessities have rendered con- 
nivance at fraud and peculation an accustomed part of the spoils 



PLAN FOR OBTAINING OUR T R E S I D E N T S . 09 

of party victory. It must ever remain so under a purely elec- 
tive system, and witliout remedy, because, 

4. It causes the election of President, Senators, and Representa- 
tives hy the same process of party combination. 

The consequence of tliis is, tliat all the elaborated checks 
and balances of the Constitution avail nothing toAvards prevent- 
ing abuse of power and corruption. The President is always, 
according to his personal character, either the subservient tool 
or the dictator of the dominant party that elects him. Their 
independence on each other, though carefully provided for by 
the Constitution, has no practical existence under our system 
of government. "Whatever his character, he has to submit to 
party dictation in distributing the spoils ; but in all other 
things, if he be a man of firmness, he dictates to his party. 

In a report made to the Senate so far back as 1826, Mr. Van 
Buren, Mr. Benton, and other eminent members of a commit- 
tee, distinctly exposed this pernicious effect of a purely elec- 
tive Presidency. In commenting on the influence of partyism 
upon our institutions, they proclaimed the disagreeable, dis- 
graceful fact thus : '■'■Those loho make the President must support 
him. Their political fate is ide7itified, and they m,ust stand or fall 
together.'' "Patronage will penetrate this body, subdue its 
capacity of resistance, chain it to the car of power, and enable 
the President to rule as easily and much more securely with 
than without the nominal check of the Senate." In 1835, Mr. 
Calhoun, as chairman of another committee, uttered similar 
sentiments. 

Hence the imperious necessity for disjoining the mode of 
electing our Presidents and Representatives. In this way alone 
can the former be placed under the proper control of the latter, 
instead of having usurpations and abuses of power cloaked 
and excused by the numerous Representatives of the party 
carrying the election. Our Presidents and Representatives 
must not have a community of interest in corruption. 

5. It ostensibly gives the election to the people, hut really confers 
the appointment of our Presidents upon party conventions. 

All the machinery by which these conventions are gotten up 
and controlled, from the primary to the grand national assem- 
blage, is notoriously under the management of men little 



100 PLAN FOR OBTAINING OUR PRESIDENTS. 

worthy of the trust. The popular power of veto upon their 
nominations is worth nothing. The alternative of not voting, 
or voting for the nominee of the opposing party, is with most 
men no alternative at all. Honest home-keeping citizens, who 
have no personal interests to serve by mingling in those party 
orgies, have little or no voice in the making of our Presidents. 
The office has become the perquisite of politicians by trade, 
party hacks, and tricksters. The great bulk of the nation has 
to take just such Presidents as these men choose to appoint. 

Imagine the material of which the Electoral College, now 
suggested, would be composed, and compare it with one of 
those party conventions. Recollect that, in the formation of 
such a College, the people would have full and perfect control, 
whereas in the formation of these conventions they have next 
to none at all. 

A probable benefit from the plan would be the obtaining an 
invaluable corps of Pepresentatives, such as are known in the 
English House of Commons as Independent members, or such 
as are allied to no party, and who hold the balance of power 
between parties, thus performing the valuable function of a 
conservative balance-wheel. 

If promptly acted on by Congress at its next session, the 
ratification by the requisite number of States could be obtained 
before its adjournment; and the angry, dangerous sectional 
contest for the Presidency of next year could be superseded. 
The adoption of some such plan as the one proposed is prob- 
ably the only feasible means of stopping the sectional party 
contest with which the nation is now afflicted, and averting the 
great danger which it threatens if prolonged during only two 
contests for the Presidency. If the veto-^owev of the President 
can be securely placed beyond the grasp or dictation of party, 
nothing could give such security to sectional interests against 
improper sectional aggression from superior numbers in Con- 
gress. Sectional parties and sectional strife would soon dwin- 
dle into what would be a merely healthful sectional vigilance. 

Should the plan be adopted, we might well hope that the 
influence of the example would procure similar reforms in the 
State and City Governments. 



THE RIGHT OF SECESSION. 101 



CHAPTER X. 

November 6, 1860. 

THE RIGHT OF SECESSION. 

The happy union of these States is a wonder; their Constitution a miracle; 
their example the hope of liberty throughout the world. Woe to the ambition 
that would meditate the destruction of either, — Madison. 

Ko. I. 

Some thirty years ago South Carolina, feeling aggrieved by 
the tariff, her ingenious citizen, Mr. Calhoun, devised for her 
the remedy of nullification and secession ; the one enabling 
her, by her sole action, to nullify Congressional laws, and the 
other to quit the Union whenever she pleased. These dogmas 
were new inventions, then first made after more than forty 
years passed under the Constitution. It was claimed, however, 
that they were sanctioned by the Virginia Resolutions of 1798 
and 1799 ; but fortunately Mr. Madison, who wrote those reso- 
lutions, was still alive and indignantly refuted the imputation. 

In pursuit of this visionary remedy the people of South Caro- 
lina met in convention, and by formal ordinance attempted to 
nullify all acts of Congress imposing duties on imports, with 
an accompanying declaration, that, if not allowed this remedy, 
then the State would secede from the Union. These proceed- 
ings were met by the proclamation from President Jackson, 
which, after demolishing, with most signal ability, all the sophis- 
try by which it was attempted to sustain these new dogmas, 
gave warning that forcible resistance to law — forcible secession 
being treason — would be treated, prevented, and punished as 
such by use of all the powers of the Government. Congress, 
concurring in his views, vested him with ample power to put 
down the movement by force. This action of the President 
and Congress received the almost unanimous approval of the 
nation, outside of South Carolina. ^Vhigs and Democrats vied 



102 THE RIGHT OF SECESSION. 

with each other in enthusiastic laudations of the patriotic pro- 
clamation. That proclamation obtained for General Jackson- 
more of the national confidence and esteem than everything 
else he had ever done, not even excepting his brilliant victory 
of ^ew Orleans. There were probably not a hundred intelli- 
gent men in either Kentucky or Tennessee who did not cor- 
dially unite in this applause. The opposers anywhere out 
of South Carolina were only a few ultra State Rights ab- 
stractionists, sparsely scattered through some of the Southern 
States. His approvers embraced a vast preponderance of the 
legal lore, the statesmanship, the general intelligence, and vir- 
tue of the nation. If a constitutional question ever can receive 
an authoritative, final decision from the whole nation, the ques- 
tions of nullification and secession were then so settled. That 
national decision was given under the guidance of a thorough 
discussion, in and out of Congress, of unsurpassable ability. 

Since then a new generation has grown up, and, in the hope 
that the decision may have been partially forgotten or lost its 
influence, the dogmas of secession are again being urged as a 
rightful remedy for the supposed grievance of a State, in aid 
of disunion schemes. 

The instrument creating the original Federal Governmeiit 
bore the title of "Articles of Confederation between, the States." 
and professed to be only " a firm league of friendship " between 
the States, expressly retaining for each "its sovereignty, inde- 
pendence, and every power not expressly delegated to Con- 
gress." One of the articles declared that " every State shall 
abide by the determination of Congress on all questions sub- 
mitted to them by this Confederation," and "the Union shall 
be perpetual." But Congress having no power to coerce its 
decisions, and its powers proving altogether inadequate to an 
efiicient, stable, permanent Government, such as the nation 
desired, the Constitution was devised and adopted as a substi- 
tute for the federate league. 

In the explanatory address which the Convention directed 
its President, General Washington, to make to the then Con- 
gress, it was said : " It is obviously impracticable in the Federal 
Government of these States to secure all rights of independent 
sovereignty to each, and yet provide for the interest and safety 



THE RIGHT OF SECESSION. 103 

of all. Individuals entering into society must give up a share 
of liberty to preserve the rest." Thus it was frankly notified 
that, by the proposed Constitution, the States would be shorn 
of their absolute, independent sovereignty. The address fur- 
ther said : " In our deliberations we kept steadily in view that 
which appears to us the greatest interest of every true Ameri- 
can, the consolidation of our Union^ in which is involved our 
prosperity, felicity, safety, perha.ps our national existence." 
In accordance with this, the introductory enacting clause of 
the Constitution says : " We, the people of the United States, 
in order to form a more perfect Union, etc., do ordain and establish 
this Constitution.'" Indeed, it appears from the clause in the 
Articles of Confederation to have been a cherished idea with 
the nation, that "the Union shall be perpetual," and the Con- 
vention itself could have had no other leadins; idea than the 
one which it avowed — to consolidate and perfect the Union. 

The previous Government having been a mere confederacy, 
its written compact of association bore the appropriate title, 
"Articles of Confederation between the States." But when 
the object was to consolidate and perfect the Union, upon the 
fiat of the nation, and to initiate an adequate national Govern- 
ment, no such title being longer appropriate, it was signifi- 
cantly dropped, and the people — not the States — ordained and 
established a Constitution for the Government of the nation ; 
that is, a form of government not resting upon the revocable 
consent of confederated States, but upon the paramount edict 
of the people amalgamating themselves into one nation, the 
equal citizens of a common country, to which all owed a para- 
mount allegiance, though still retaining, for many purposes, a 
distinctive, separate, subordinate citizenship in their respective 
States. 

The clause reserving the non-delegated powers " to the 
States respectively, or to the people,'" distinctly manifests the 
intention that, under the new system, there was a power in the 
people, as a nation, not wholly identified nor identical with 
that of the States. Otherwise the reservation would have been 
exclusively to the States, and nothing said about the people. 

The plan was to consolidate — not the Government, but — the 
Union and our nationality, and to that end to give the Govern- 



104 THE RIGHT OF SECESSION. 

ment adequate self-sustaining powers. To enforce obedience 
on the part of the States, a power altogether wanting under 
the Confederation, the new Government was authorized to 
coerce obedience from their individual citizens — to coerce a 
State by means of direct action upon all her functionaries as 
individual citizens of the Union, to whom they owe a para- 
mount legal duty of obedience and allegiance. With this view 
the Constitution and the laws made under it are declared " the 
supreme law of the land, anything in the Constitution or laws 
of any State to the contrary notwithstanding." To secure this 
supremacy of the Constitution, and enforce the obedience of 
every citizen, jurisdiction is given to the Federal Judiciary 
over " all cases in law or equity arising under this Constitu- 
tion, the laws of the United States, treaties made under their 
authority, and controversies between two or more States." 

The Government being thus clothed with full power to dis- 
charge all its own functions without any State aid, and there 
being no superior or supervismg power over it, except the 
ballot-box, became necessarily, unavoidably — like a State Go- 
vernment under a State Constitution — the sole judge and 
exponent of the extent of its own powers. "Whatever danger 
of abuse there may be from the exercise of such ultimate 
power, it is a mere necessity of all government, an unavoida- 
ble incident to all practical government. It is a trust we are 
compelled to make for the sake of law and order. Its abuse 
is better guarded against in the Federal Government than any 
other that has ever been devised — vastly better than in the 
State Governments. The guards are the ballot-box and the 
subdivision of power among three separate, independent bodies 
of magistracy, together with the jealous, ever wakeful vigilance 
of the States, and their equal representation in the Senate. 

There having been so much trouble, delay, and difficulty in 
obtaining the Constitution, and its importance so highly appre- 
ciated by those who made it, they could not have intended to 
permit its being broken up and destroyed by a single State. 
Or, if so improbable a thing could have been intended, such 
sagacious, provident men, would not have left so important a 
right and power to rest upon a mere disputable inference, but 



THE RIGHT OF SECESSION. 105 

would liave allowed it in plain language, and stated the mode 
of its exercise. 

It is not pretended that a single word of the Constitution 
recognizes, or can he misconstrued into recognizing, the right 
of secession. The right is claimed from facts outside the Con- 
stitution, and in contradiction of a fact stated in its preamhle. 
Mr. Calhoun distinctly admitted that if the Constitution had 
in truth heen made, as it says, by the people, or in other words 
by the whole nation, then there would not be a pretence for 
the right of nullification or secession, and such claim " would 
be an absurdity; " as much so as if made in behalf of a county 
in reference to its State. But having been unavoidably rati* 
fied by the people, through separate conventions assembled in 
their several States, he claimed that it was a creation and rati- 
fi.cation by States, which rendered it a mere confederacy of 
States, each having the right incident, as he said, to all con- 
federacies, of seceding when she pleases. His conclusion 
would not follow his premises, even if they were true ; but 
they are not true. He likens the Union to a partnership of 
undefined duration between individuals, from which each has 
a right to withdraw at pleasure. But there is no analogy 
between the two cases. 

It is much more like the indissoluble compact " for better, 
for worse," between husband and wife. Or it is more like the 
binding together the rights and property of individuals under 
an indissoluble act of incorporation from which no stockholder 
has a right to withdraw his funds. The Constitution is the 
great act of incorporation binding the States as corporate enti- 
ties in a perpetual Union and their citizens into one common 
indissoluble nationality. Such a Union as the recognized right 
of nullification or secession would leave us would be about as 
valuable as the "free-love" union between men and women. 
If the strong natural principle of " passional attraction" cannot 
secure a stable union of the sexes, still less can the so much 
weaker principles of justice and fidelity be relied on as the 
only cohesive power between States. There is no natural ten- 
dency to cohesion among States. The natural tendency of men, 
whether as individuals or as communities, is to be restive under 
restraint, and to kick themselves free from their harness. 
14 



106 THE RIGHT OF SECESSION. 

There is no reason, in principle or analogy, why different 
peoples should not, by mutual agreement, as the citizens of our 
States did, fuse themselves into one indissoluble nationality. 
The examples of its having been done are very numerous. 
That of Aragon and Castile is one ; and that of England and 
Scotland another not less illustrious. There can be no reason 
why the people, acting separately in their different States, should 
not or could not nationalize themselves by adopting a l^ational 
Constitution just as the people of a State, acting separately in 
their different counties, adopt a State Constitution. 

Let us test secession by a few practical examples of its pos- 
sible operation, and we can then better judge whether an 
acknowledgment of the right be at all compatible with the 
probable intention of the framers of the Constitution. 

Many Southern men have commended Mr. Buchanan's 
scheme to purchase Cuba at the cost of one hundred and fifty 
millions. Suppose the purchase made, and the Island admitted 
as a State into the Union. After the lapse of a few years, it 
would probably turn out that the Spanish inhabitants, who will 
always be the large majority, become discontented with the 
change, because of the impossibility of a cordial afiiliation of 
the two races. Should we permit them to secede and sell the 
Island to England, France, or Spain, without compensation or 
indemnity to us ? The nation would unanimously say, no — it 
shall not be done ; and if the Cubans are dissatisfied, the proper 
remedy is for them to sell out and move away. The same 
answer would be given to any State, whose retention was of 
great national importance. 

"We bought Florida with our money, redeeming her people 
from a Spanish despot. Who would contend that we should 
permit her five thousand voters to dissolve her connection with 
us, and sell her to a foreign power ? 

Texas cost us the war with Mexico, and, through that, a 
hundred millions, to say nothing of ten millions gratuitously 
given to redeem her from insolvency. Should she now try to 
secede, and sell herself to England or France, every man's 
sense of justice would be shocked with the perfidy of the 
attempt. With what scorn and contempt would the impotency 



THE RIGHT OF SECESSION. 107 

of a Government be viewed wliicli wanted either power or 
inclination to protect itself against sucli a swindle. 

A stronger case than either of these could be supposed — 
an attempt by Louisiana to secede, with the accompanying 
incident of a power to transfer herself to England or France. 
Near sixty years ago the nation paid fifteen millions of dollars 
for the country of which she was then a part, redeeming her 
people from vassalage to a European despotism. But the pur- 
chase was not made for their benefit, or that of those who 
might go there to settle. It was made for the benefit of the 
whole nation, but more especially for that of all the people 
who then were or might become inhabitants of the great val- 
ley of the Mississippi. Control of the mouth of the river was 
deemed by all as much the larger part in value of the whole 
purchase. The ownership of the mouth secured to the nation 
an outlet to, and an inlet from, the ocean for all the vast pros- 
pective trade of the great valley. It also relieved us from the 
too close neighborhood of a foreign power in a position of com- 
manding infiuence upon a large portion of our people. In a 
word, its ownership was indispensable to the prosperity of the 
great empire which it was foreseen would grow, and which has 
already grown up in the great Mississippi valley. The im- 
portance of this ownership is such, that the eleven millions of 
whites who now inhabit the valley could afibrd and would 
stand a ten years' war, rather than submit to its alienation to 
any foreign power w^hatever, whether that of a European nation 
or a Southern Confederacy. 

It is not intended to impute to the citizens of Louisiana, or 
to those of the two other States referred to, the atrocious pur- 
pose of endeavoring to secede. They have the same right to 
do so as any other State, and their cases are only selected to 
illustrate how preposterous the idea that the nation would per- 
mit the permanent secession of any State, when its conquest, 
for the purpose of reannexation either as a State or a subject 
province, would at once become a national duty of the most 
imperative necessity. This duty to themselves the people of 
the great valley would certainly perform as to Louisiana, though 
the balance of the nation gave us no aid, or should even attempt 
to prevent us. 



108 THE RIGHT OF SECESSION. 

The right of secession is, therefore, a mere question of ab- 
stract right not worth discussing, but for the quieting of honest 
men's doubts, because it can never be practically enforced, 
unless by so large a body of States as to throw the question of 
right entirely out of view, in determining whether it will be 
better for the nation to acquiesce or resist the attempt. When 
a single State or a few States attempt secession, the question 
will be settled upon no sublimated, self-denying principle of 
friendly deference to a disputable right, but upon the sterner 
principle recognized by the usage of nations, that power gives 
right. 

It is incredible that any large portion of the intelligent people 
of Louisiana can desire secession, even if it were attainable. 
Ever since she has belonged to the Union, she has been a sort 
of pet nursling. The nation has long paid an annual tax of 
not less than five million dollars for the protection and pro- 
motion of her sugar interest. That great branch of her wealth, 
yielding annually eighteen or twenty millions, would be irre- 
trievably prostrated by disunion, and the trade of her com- 
mercial mart materially injured, if not destroyed. 

Free trade and no tariff are prominent among the vaunted 
benefits held forth by disunionists in behalf of a Southern Con- 
federacy. That policy would destroy the sugar-planting inte- 
rest, which could not live without protection against foreign 
sugar. Virginia quit the disunion hunt for the sake of a much 
smaller pecuniary interest of her o^vn. She stopped disunion- 
ism so soon as she ascertained that it involved the reopening 
of the African slave trade, to the prejudice of her slave-raising, 
and her protected monopoly of the slave market. 

Louisiana participates largely, and much more than most of 
the States, in whatever benefit ensues from national disburse- 
ments among her citizens. No State is more benefited by the 
Union in the protection of her foreign trade. She knows too 
well the numbers and character of the hardy yeomanry of the 
"West to voluntarily seek or provoke a hostile collision with 
them. To say nothing of duty or affection, she has the most 
controlling motives of interest to cling to the Union. We may 
therefore rely, with the utmost confidence, that she will neither 
attempt to secede, or aid in forming a weak Southern Confed- 



THE RIGHT OF SECESSION. 109 

eracj that will not have a commercial harbor deep enough to 
float a frigate, and which can have neither a commercial or 
naval marine, or the means of creating either. 

Here hes, in the non-secession of Louisiana, the abundant 
reason for a confident reliance that no secession movement will 
be successful or even seriously attempted. Without her co- 
operation, Mississippi vnll never think of secession. The people 
of Mississippi will never voluntarily cut themselves otf from 
free access to the ocean, or subject their products to taxation in 
order to reach it. They will never assume a position which 
^^dll compel them to transport their cotton overland to reach 
an outlet at Mobile. 

Without the co-operation of Louisiana and Mississippi there 
will be no secession. South Carolina, Georgia, Alabama, and 
Florida, are entirely too feeble in numbers, and all the ele- 
ments of national strength, for a separate Confederacy. An 
abortive efibrt of the sort would only bring upon them the pity 
or ridicule of the world. It is a most uncharitable injustice to 
measure their sense by the ebullitions of their fire-eaters. 
Such men always thrust themselves forward into the apparent 
lead, without really possessing the influence ascribed to them. 
If those States were capable of such a farce as to go through 
the solemn forms necessary to attempted secession, all the Gov- 
ernment would have to do would be to take care of the forts, 
and by blockade compel payment of the duties, without noticing 
or molesting them in any other way. In less than a year they 
would become tired and ashamed of their folly, and quietly 
assume their place and the performance of their duties within 
the Union. 

But it is to be presumed that they will be guilty of no such 
folly. They will not attempt the formation of a Confederacy 
too feeble to protect their commerce from pirates on the ocean, 
or their slaves from fillibusters on land. 

If it be deemed proper to make surety doubly sure, all that 
will be needed is for the people of Kentucky-, Tennessee, and 
Missouri, in numerous meetings of popular assemblies, unani- 
mously to resolve that they mean to maintain the Union ; that 
they will not tolerate the secession of Louisiana, nor the per- 
secution or putting down of Union men with the strong hand 
by disunionists in any State attempting secession. 



110 THE RiaHT OF SECESSION. 



No. n. 

Enougli has not been said, indeed too much cannot well be 
said, on the subject of the free navigation of the Mississippi, 
and the insolent attempt to control it and tax our trade. 

The great valley, after excluding all Texas, all Western 
Virginia, and Pennsylvania, and all west of Kansas, contains 
an area double in extent all the Union east of it, with more 
than five times the ability to sustain population, the advantage 
in climate and soil being properly considered. "With those 
exclusions, the valley now has a population of 13,100,000, of 
which 1,500,000 are slaves and 11,600,000 free. Of that free 
population, Louisiana and Mississippi have only 760,000. 
Twenty years hence, when those two States will have only a 
million and a half, or at most two millions of whites, the rest 
of the valley will have near thirty millions, if the rapid increase 
of the two last decades is kept up. 

The fact is, that, notwithstanding its thirteen millions of 
population, the valley may be properly said to be only w^ell 
prepared for settlement, and to have only got a good start in 
manufactures and commerce. Its capabilities in the way of 
population reaches at least two hundred millions, without 
approaching the density of European nations. 

Its development in commerce and manufactures, during the 
next twenty years, will be rapid and vast. Mexico when 
quieted, with Central America, South America, and the West 
Indies, are or will be the abundant markets for the enormous 
agricultural and manufacturing products of the valley, and in 
which she can meet no successful competitor. For all this 
immense trade, five-fold what it now is, Orleans is the natural, 
indispensable entrepot, the distributing merchant. 

Let the people of Louisiana pause here and think: will the 
eleven millions of hardy freemen who now occupy the upper 
part of the valley, or the more than twenty-five millions of 
twenty years hence, permit Louisiana to block their way to 
the ocean ? Will they permit her, or any foreign government 
whatever, to assume control over the navigation of the river 
for any purpose, or to tax their trade? Such an idea is 
contrary to every rational presumption. It is not merely 



THE RIGKT OF SECESSION. Ill 

irrational, but may bo properly termed an impossibility. No 
people, having the power to right tliemselves, ever did or ever 
will submit to such wrong and oppression. Everyman among 
those eleven millions believes that he has as much right to the 
free, unobstructed, untaxed use of the river and its marts, as 
he has to the public highway in his county, or the street in 
his town. 

As an evidence of this general belief, take this extract from 
another speech of Mr. Clay, in the great debate of 1850 : " I 
hope there is no one in the Senate before whose imagination 
is flitting the idea of a great Southern Confederacy, to take 
possession of the mouth of the Mississippi. I say never, iiever, 
NEVER will we, who occupy the broad waters of the Mississippi 
and its tributaries, consent that any foreign flag shall float at 
the Balize or upon the turrets of the Crescent City ; never, 
never." 

But even if the seceders had the rightful power to tax our 
trade, it would, under the circumstances, be grossly ungene- 
rous and unjust to do so. We not only have no power of 
retaliation, but we are compelled to receive their sugar and 
cotton free from duty ; and that sugar and cotton has the 
monopoly of our markets, being protected by our laws against 
foreign competition. 

What claim have the people of Louisiana to the leniency 
and forbearance of our eleven millions, justifying the hope that 
they will forcibly stop this insolent usurpation on our rights ? 
Did they pay the fifteen millions which its purchase and re- 
demption from despotism cost ? No, not a dollar. As little 
did they contribute towards the other millions expended in 
building the custom house, forts, etc. How has Louisiana 
grown rich, and her commercial mart been built up ? By the 
trade of the upper valley, the protection of her great sugar 
staple, yielding her annually eighteen or twenty millions, and 
the large amount of national disbursements in her midst. Did 
she fail in her hour of need to receive the protection of those 
bold yeomen of Kentucky and Tennessee, whose rights she is 
now trampling on ? Let her remember the invasion of the 
British army, with its battle-cry of "beauty and booty," and 
answer if she can without a blush. In return for all these 



112 THE BIGHT OF SECESSION. 

benej&ts, she is, witla perfidious ingratitude, endeavoring to ruin 
the nation that bought her, protected her, and so liberally 
fostered her interests. She is trying to bring what she knows 
will be ruin upon her Kentucky and Tennessee defenders, and 
infinite mischief on all those people of the upper valley, whose 
commerce has made her insolent with the fat of prosperity. 
Can she protect herself, or can her traitor consorts protect her 
in her assumed independence ? Not so ; full well she knows 
that the most paltry naval power, by blockading the river, 
could compel her into ignominious submission. She trusts to 
our protecting arm, with the hope that our interests, if not 
our sympathy, will afford her aid against foreign enemies. Our 
trade built up her great mart, our aid will always be necessary 
to its safety, yet she has the cool effrontery to attempt keeping 
us from the free navigation of our own river, and to tax our 
trade in obtaining access to her markets. 

All this is the extreme of folly. She cannot be so insane as 
to trust to our forbearance under such ungrateful wrong. She 
has been deluded with the belief that the Border Slave States 
of the valley would come and join her in secession. ]^ow, 
when that falsehood is so thoroughly exposed, now that those 
States have so emphatically said they have no adequate cause 
for secession, and, that as to herself, she has not even decent 
pretext for it, will she persevere in her mad attempt at dis- 
union ? Will she not make a virtue of necessity, voluntarily 
resume her place in the Union, and not wait to be comj)elled ? 

She, like her consorts, has been duped and precipitated into 
secession. Her disunion conspirators have "fired her Southern 
heart" by showing how Abolitionists and Yankees have abused 
her institutions. Her fire-eaters have not waited her bidding 
to avenge her in kind. There has never been a time when 
they did not pay back in kind with unstinted measure. They 
may well be trusted for continuing to do so. They are good 
for that, if for nothing else. They can hold their own against 
the combined world, at a pelting with vituperative denuncia- 
tion. 

But then, there is the irrepressible confliot. "Whilst it was 
the mere nonsensical vagary of Lincoln and Seward, with 
which they exposed their very small pretensions to philoso- 



THE RIGHT OF SECESSION. llo 

phical statesmanship, the irrepressible conflict was cursed by 
the fire-eaters througli all the moods and tenses of denuncia- 
tion. But when they had duped their States into secession, 
and were made to see that they had no interest either in the 
territorial or fugitive slave question, they seized hold of the 
denounced irrepressible conflict, bolstered it up as a true doc- 
trine, and now make it the all-sufiicient reason for disunion. 
It may be that there is, and will continue to be, an irrepressi- 
ble conflict among party politicians, so long as the people of 
the two sections permit their prejudices to be played upon for 
party benefit. But that there has been any otherwise nation- 
ally injurious conflict between free and slave labor, is about 
the grossest falsehood that ever was palmed upon a gullible 
nation. Our whole national experience is in its complete dis- 
proof. If there has been any such conflict, we have, in its 
despite, prospered as nation never prospered before. During 
the last twenty-five years the conflict is supposed to have raged 
with peculiar fierceness, yet that is precisely the epoch of un- 
precedented prosperity to both North and South. Take the 
case of Kentuclv}', lying between the upper and nether stone, 
in the very crush of the direful conflict. She, too, has pros- 
pered to the entire content of her citizens. Her slaves have 
increased three-fold in value, and all her rich slave-worked 
lands nearly in the same proportion. 'No men, except cotton- 
planters, have prospered more, or grown so swiftly rich, as her 
industrious slave-working farmers. If such is the result of the 
irrepressible conflict, let us cling to, rather than attempt to flee 
from it. Let us have still more of that sort of mischief. ~We 
can afford to stand a great deal of wordy abuse from fanatics, 
for the sake of such substantial benefits. 

So, also, in despite of platform declarations, speeches of 
leaders, and Congressional resolves of the Republicans, the 
Southern mind was most industriously instructed into the be- 
lief, and the Southern heart frightened with the fear, that Re- 
publicans were bent upon interfering with the rights of slave- 
holders within the States ; that there would soon be free States 
enough to change the Constitution so as to give them the ne- 
cessary power for that purpose. To silence this calumny, and 
to quiet this fear. Congress passed an irrevocable amendment 
15 



114 THE RIGHT OF SECESSION. 

of the Constitution, expressly prohibiting an}i;hing of the sort. 
No sooner is this done than the cry is raised that it amounts 
to nothing; the Constitution was plain enough before, it 
wanted no amendment, and the act afibrds no evidence even of 
a disposition at the North to conciliate. Indeed, a distinguished 
leader of the late Democratic party has recently started the 
doctrine, that all constitutional guarantees are worthless ; that 
they can and will be "trampled in the ground." What a doc- 
trine to come from American, but especially Kentucky lips ! 
A constitutional guarantee worth nothing, even when it has 
eight millions of Americans to uphold it and vindicate its 
observance ! "What then is all our vaunted system of govern- 
ment, our constitutional liberty worth ? Is it all a mere cheat 
and delusion ? Is it all, indeed, no better worth, as he seems 
to think, than any other the same amount of lampblack and 
paper ? When men are in so desperate a condition as to urge 
such doctrine in behalf of precipitation, we can cease to won- 
der at their temerity in attempting to drive Kentucky into 
disunion. 

It is the duty of every good citizen to do all he can towards 
undeceiving the people of Louisiana, and letting them know 
that it is not, never was, never will be the intention of Ken- 
tuck}^, Tennessee, and Missouri, to join her in secession, and 
that they will not submit to her usurpation on their rights. 
This done, after a short cooling time, Louisiana will return. 
"When she does that, the Cotton Confederacy will rapidly dis- 
solve. Thus, and perhaps thus only, can we expect a speedy 
restoration of the Union, %vith an amicable adjustment of our 
national affairs. 

Since the foregoing was written, the writer has been much 
gratified to find that the views given here, and in his pamphlet 
of last January, as to the probable mode of reconstruction, are 
fully confirmed by that eminent Virginian, the Hon. William 
C. Rives, who has filled so many high offices with such distin- 
guished ability. In his recently published speech, he fully 
confirms the opinion herein indicated — that if Kentucky, Ten- 
nessee, and Missouri, are only true to themselves, and cling 



THE RIGHT OF SECESSION. 115 

together, they have the abundant power to restore the Union. 
He says : 

" AYheu a plan of adjustment shall have been concurred in 
by both the Border Slave and the Border Free States, then 
the slave States in the valley of the Mississippi, interested in 
the free navigation and commerce of that river, will cordially 
unite with the powerful free States above them in such a 
pressure upon Louisiana as must bring her back into the 
Union. It is impossible that the States lying upon the upper 
parts of the Mississippi and its tributaries can, for any length 
of time, acquiesce in the possession of its mouth by a power 
foreign to them. 

"It is in vain that the Southern Confederacy proclaim the 
free navigation of the Mississippi as a general thesis. Look 
at the bill on the subject recently passed by the Congress at 
Montgomery, and you will see that, while they declare the 
principle of the freedom of the river, they, at the same time, 
prescribe multiplied regulations with regard to the trade upon 
it destined to States beyond the limits of the Confederacy, the 
neglect or violation of any one of which involves the forfeiture 
of vessel and cargo, or other heavy penalties. These are vexa- 
tions and annoyances which cannot but be sorely felt; and the 
time will come, and come soon, in case of an adjustment of 
existing controversies satisfactory to the Border States, when 
Tennessee, Kentucky, Arkansas, Missouri, and Western Vir- 
ginia, will earnestly unite with Pennsylvania, Ohio, Indiana, 
Illinois, and Iowa, in deprecating and opposing a foreign juris- 
diction at the mouth of the Mississippi. 

"This united pressure, concurring -^-ith internal causes, will, 
I firmly believe, induce Louisiana, at no distant day, to return 
into the Union ; and when she returns, the State of Mississippi 
must and will follow. Here, then, the line of the seceded 
States is broken at its centre. Texas will be isolated on the 
west ; Alabama, Georgia, Florida, and South Carolina, on the 
east ; and what rational motive can any of these States have 
to continue in such a condition of segregation, when, in the 
meantime, every reasonable guarantee shall have been obtained 
for the security of their rights in the Union ?" 



116 SOUTH CAROLINA, DISUNION, ETC. 



CHAPTER XI. 

January, 1851. 

SOUTH CAROLINA, DISUNION, AND A MISSISSIPPI 
VALLEY CONFEDERACY. 

Ko. I. 

THE ANTECEDENTS OF SOUTH CAROLINA. 

The State, judged by its ruling majorities, lias not had a 
single patriotic sensation for tlie last thirty years. As General 
Jackson said, in his letter to the Eev. Mr. Crawford, she first 
sought disunion under the pretext of the tariff; and as he pre- 
dicted, on the failure of that scheme, she has been ever since 
diligently seeking it under pretext of the slave question. 

"When she commenced this enterprise, thirty years ago, her 
aspect, as compared with that of many other States, was one 
of penury and decay. She seemed to be laboring under a 
lethargic paralysis. With no manufacturing or mechanical 
industry, and but little external trade beyond the mere sale 
of her exports, she had no means of resuscitation by natural 
means. With nothing to invite influx of population or capital, 
both population and trade seemed to have come to a stand-still 
with an ominous prospect of material diminution of both, 
whilst most of the other States were progressing with unpre- 
cedented rapidity. In this state of things it was easy for her 
politicians to delude her into the belief that her unprosperous 
condition could be remedied by the organization of a Southern 
Confederacy, of which she would be the commercial and poli- 
tical centre. Hence the great unanimity with which she at- 
tempted her mad experiments at nullification and secession. 
The deep mortification for the disgraceful defeat of that ex- 
periment extinguished every remaining spark of her patriotism. 
It has never been forgotten or forgiven, but has been brooded 



SOUTH CAROLINA, DISUNION, ETC. 117 

over until rancorous liate toward the Union and tlie nation has 
been substituted for whatever of patriotism she once felt. Her 
guiding statesmen have held disunion as their ultimate aim in 
all political operations. It has been untiringly pursued with 
demoniac hate and perseverance, and with a statesman-like 
ability worthy of a better cause. Their policy has been, in aid 
of abolition disunionists, to agitate unceasingly the slave ques- 
tion, for the purpose of consolidating the South into a sectional 
party, well knowing the necessary consequence to be the con- 
solidation and sectionalizing of the I^orth, together with ulti- 
mate disunion. Abolition disunionists and tire-eating dis- 
unionists have, for more than twenty years, been aids to each 
other in the accompHshment of their mutual designs against 
the Union. 

So early as 1835 they commenced the formal agitation in 
Congress, under the miserable pretext of the presentation of 
abolition petitions, and it has been perseveringly kept up ever 
since, — the bulk of the nation, North and South, all the time, 
honestly endeavoring to keep down the agitation. The South 
was indulged, at the expense of an onerous foreign war, in the 
acquisition of Texas, for the purpose of extending the area of 
slavery over five new States. But this was not done fast enough 
for South Carolina and her co-conspirators. A convention of 
Southern States was called to meet at jSTashville, under the cry 
of "Texas or Disunion;" but it was indignantly repulsed by 
the citizens of I^ashville, and failed. But five years later a 
Southern convention was actually held in IS'ashville with the 
view of promoting disunion. The convention was largely at- 
tended by prominent men from Carolina, Georgia, Alabama 
and Mississippi ; but there were only a very few from Tennes- 
see, and not a man from Kentucky. This convention recom- 
mended a Congress of Southern States to redress Southern 
grievances, the chief of those supposed grievances being, at 
that time, the refusal of Congress to legislate slavery into the 
southern half of California against the wishes of its citizens. 
The Legislatures of South Carolina and Mississippi were all 
that acceded to this recommendation of a Southern Congress. 
During the discussion in the South Carolina Legislature lead- 
ing members undisguisedly avowed disunion as theu* object, 



118 SOUTH CAROLINA, DISUNION, ETC. 

and even said that, so far from having any love for the Union, 
it was the object of their detestation and abhorrence. Mis- 
sissippi was guilty of the folly of actually calling a convention 
to decide upon secession on account of their grievances. The 
agitators were sorely disappointed, and severely rebuked. The 
convention decided that there was no need for its call, and 
expressly repudiated secession as nothing but revolution and 
rebellion. 

In 1850 the South was indulged with the passage of a more 
efficient fugitive slave law, and all sectional questions were 
settled by what, it was hoped, would prove a permanent com- 
promise pacification. The Democratic party justly claimed the 
credit in obtaining this compromise, and the nation was so 
well satisfied therewith that its candidate for the Presidency, 
in 1852, secured the vote of twenty-seven out of thirty-one 
States. But pacification did not suit the disunion agitators. 
Under their influence the Missouri Compromise was repealed, 
with full fore-knowledge that its repeal would cause a more 
intense excitement on the slavery question than was ever before 
witnessed ; that it would probably destroy the E'orthern wing 
of the Democratic party; and that it would do the South no 
good, as it was utterly impracticable to make a slave State out 
of Kansas. After the repeal had given the control of the House 
of Eepresentatives to the Free-soilers, and Mr. Buchanan had 
escaped defeat by frauds and accident, instead of doing any- 
thing to soothe the excitement, they purposely intensified it 
by attempting to force through the infamous Lecompton swin- 
dle against the known wishes of four-fifths of the voters of 
Kansas. Failing in that, they actually accomplished the pass- 
age of the equally infamous bribery bill, whereby they inso- 
lently proclaimed that Kansas had population enough to be 
admitted as a slave State, but not half enough to be admitted 
as a free State. This discrimination in favor of the slavery 
propaganda they well knew was a grosser sectional outrage 
and insult than any, or all the acts of the ISTorth combined. 
The fraud saturation of the Lecompton swindle was so noto- 
rious, that a distinguished South Carolina Senator was com- 
pelled to admit, in afterward addressing his constituents, "that 
Southern honor required that the South itself should have 



SOUTU CAROLINA, DISUNION, ETC. 119 

kicked tlic infamy out of Congress." Having thus deprived 
the Democracy of all footliold in tlie N'ortli, they split it into 
two fragments, nominate a Southern candidate for the Presi- 
dency and proclaim that if he is defeated, or Avhich, under the 
circumstances, was the same, that if Lincoln was elected, the 
Union should he dissolved. His election should he cause for 
disunion, when they themselves did the very thing to insure 
his election, even if the hare utterance of such a threat was 
not itself sufficient for that purpose. "Wliat the l!Torth, in 
cooler moments, may do for the purpose of conciliation we 
have yet to see, hut that it should have ignominiously suc- 
cumbed under the threat, no intelligent honorable man could 
have expected; eighteen millions of Americans cannot he bul- 
lied. The threat was no doubt worth hundreds of thousands 
of votes to Lincoln, and that result was what was aimed at in 
its utterance. No intelligent man can doubt that his elec- 
tion was precisely what the disunion agitators aimed to ac- 
complish, and most ardently desired. The grounds of their 
split with the Northern Democracy, and abandonment of the 
Cincinnati platform, upon a practically unessential abstraction, 
cannot be elevated to the dignity of even a respectable pretext. 
Disunion was the motive, the real motive. This their conduct 
since the election places beyond all cavil or doubt. 

Since 1835 South Carolina has been industriously pursuing 
the policy more recently enunciated by her talented and influ- 
ential leader, Mr. Rhett, in the following words: '■'■All true 
statesmanship m the South consists in forming combinations and 
shaping events, so as to bring about, as speedily as possible, a dissolu- 
tion of the present Union, aiid a Southern Confederacy y Or as 
still more distinctly portrayed in the language of the distin- 
guished agitator, Mr. Yancey: "Organize committees all over 
the cotton States to fire the Southern heart, instruct the South- 
ern mind, give courage to each other, and at the proper mo- 
ment, by one organized, concerted action precipitate the cotton States 
into revolution.'' In pursuance of this policy South Carolina, 
through her leaders, became a full participant in the atrocious 
secret conspiracy of eminent politicians and high officials in 
most of the Southern States to precipitate the nation into civil 
war in the event of Fremont's election to the Presidency. The 



120 SOUTH CAROLINA, DISUNION, ETC. 

avowed sclieme was, witliout waiting any sanction of tlie peo- 
ple of the Soutli or any part of them, to precipitate the civil war 
by a seizure of the Grovernment with armed force. The civil 
war with the North, Governor Wise confessed, would be accom- 
panied by a " neighborhood civil war^' with the Union-loving men 
of the South. To meet the exigencies of the occasion he said 
they would arm their slaves. Whilst Senator Clingman said the 
Union men would be hushed by the " swift attention of vigilance 
committees^ A national civil war and a neighborhood civil 
war combined, to be carried on with the aid of armed slaves 
and committees of assassins, was the merciful boon prepared 
for the nation by these cold-blooded, remorseless conspirators, 
and from which we were saved only by the accidental running 
of a third candidate. The worst wickedness imputed, as the 
supposed design of the worst abolitionists, does not transcend 
this in infamous atrocity. It is rivaled in cruel wickedness by 
nothing done or attempted by conspirators since the days of 
Catiline. Had we not their own avowals for the facts, it would 
be incredible that sane men, educated men, could have seriously 
conspired, in a Christian, civilized country, for the perpetration 
of such an enormous crime. How intense and unappeasable 
must be their hate of the Union and the nation ! That preci- 
pitation, without consultation with the people, is still the desire 
of leading disunionists, may be inferred from the indiscreet 
admission recently made before the members of the Georgia 
Legislature by Senator Toombs, that he had no confidence in 
the people, and feared to trust them with a decision of the 
question of secession. 

With this understanding of the long settled views and feel- 
ings of South Carolina, we shall be the better able to appre- 
ciate her candor in her statement of alleged grievances by way 
of justification for her attempted secession. In the next num- 
ber her Declaration of Independence will be considered. 

No. n. 

SOUTH Carolina's declaration of independence. 

The most notable thing about this attempt of Soutli Caro- 
lina to break up the Federal Government and dissolve the 
Union, is that she has not a single complaint, fictitious or real, 



SOUTH CAROLINA, DISUNION, ETC. 121 

not one to allege against the structure of tlie Government, or 
the manner of its administration. She alleges neither want 
of power or inclination on the part of the Government to pro- 
tect and promote her rights and interests. So far as the Gov- 
ernment is concerned, the complaint is against not what has 
been done, but what she fears may hereafter be done, by the 
prohibition of slavery in the Territories, if the Republicans 
should hereafter obtain the control of the two houses of Con- 
gress. To say nothing of the great improbability of that con- 
tingency occurring, if it were actually to occur, such a prohi- 
bition would furnish only the flimsiest pretext for so mighty a 
revolution. Such a prohibition, if it had not to encounter the 
decision of the Supreme Court, denouncing it as void and 
unconstitutional, would, if legally valid, accomplish nothing 
which the laws of climate and trade have not already irrevoc- 
ably accomplished, there being no Territory into which slavery 
could be introduced, by any encouragement, for at least fifty 
years. Such a prohibition would be no novelty in our Govern- 
ment. It was established cotemporaneously with the Govern- 
ment as to all the country north of the Ohio ; it was the basis 
of the Missouri Compromise, made, principally, by Southern 
votes ; it was part of the Texas bill of 1845, passed with the 
aid of a large majority of Southern votes, and which applied 
it to the whole or nearly the whole of the Territory upon which 
it could now have any practical bearing ; and it was applied to 
the Oregon bill, which received the approval of the Southern 
President, Polk. Such examples would relieve the prohibition, 
if actually made, from the imputation of an unmistakable dis- 
position in the North wantonly to oppress the South. The 
sum of this complaint is, the alleged fear of an improbable 
occurrence, which, if it were actually to happen, would work 
no substantial prejudice to South Carolina, or any other South- 
ern State. 

The other alleged grievances are, first, the non-rendition of 
fugitive slaves ; and second, the election of Lincoln. 

The grievance from the loss of fugitives is very small, if any, 

to South Carolina. She probably has not lost ten, in as many 

years, by their escape into a free State. There is no kno-uTi 

instance of any citizen of hers ever having been obstructed in 

16 



122 SOU.TH CAKOLINA, DISUNION, ETC. 

the reclamation of a fugitive. In tlie total absence of any- 
plausible grievance of her own, or of any other cotton State, 
she has been compelled to try to avail herself of a grievance 
confined almost exclusively to the Border States. "We of those 
Border States have not the sensibility to feel an insult when 
offered, nor the sense to appreciate an injury from which we 
are daily suffering. She, therefore, kindly steps in to vindicate 
our honor, and resent our injuries. So intense is her disinter- 
ested chivalry that she will resent the insult, and right the 
wrong, even at the expense of all her patriotic feelings, and all 
her duty of allegiance to a Government under which she has 
lived in peaceful prosperity for eighty years. Such is her self- 
sufficiency in judging our suffered insults and injuries, that 
she deems it wholly superfluous to consult us as to the mode 
or measure of the redress. Had she condescended to do this, 
she would have been told that her remedy was worse than the 
disease ; that instead of promising alleviation, it would cer- 
tainly cause a tenfold aggravation of the complaint ; that for 
every fugitive we now lose we should certainly lose at least ten, 
after disunion, on the slave line. Nor is this all. She would 
have been further told that the effect of placing another Can- 
ada upon our immediate border, in facilitating the escape of 
irreclaimable fugitives, would be to create a restless anxiety 
and continued efforts at escape, such as to render our slaves 
nearly worthless, and compel their exportation. Thus to rem- 
edy the loss of a few, we should suffer the certain loss or 
deprivation of the whole. 

iN'or is this unknown to her ; she cannot affect to be so igno- 
rant. Hence she allows no consultation about the redress of 
our peculiar wrongs and insults. 

Her late Governor, Gist, had the impudent frankness, in his 
recent message to her Legislature, to divulge her very dis- 
interested policy upon this subject. Having made up her 
mind to disunion for the sake of re-opening the African slave 
trade, or for the sake of some other supposed local advantage 
of her own, or for the sake of vengeance in her gratification 
of her hate to the Union and the nation, her policy was to 
precipitate as many of the other cotton States as she could 
into disunion also. She was to trust to the assurances of her 



SOUTH CAROLINA, DISUNION, ETC. 123 

co-conspirators for tlie immediate co-operation of some four 
of tliem, and to the example of the five for drawing the other 
cotton States after them. The co-operation of the Border 
States was neither expected or desirable. For a time, it would 
be better for the Southern Confederacy for those States to 
treacherously remain in the Union as a protection to them 
asrainst the North. But this was to be done under the full 
conviction that they would thus force upon the Border States 
the unavoidable alternative of " emancipating their slaves, or 
joining the Southern Confederacy y 

This sort of dictation toward such States as Maryland, Vir- 
ginia, North Carolina, Kentuclsy, Tennessee, and Missouri, is 
a modest specimen of the arrogant self-importance of a paltry 
State, with only some three hundred thousand effeminate 
whites, and four-sevenths of whose whole population are black. 
She and her colleagues are to form a Southern Confederacy, 
adopt a Constitution imperatively re-opening the African slave 
trade, or enforcing their cherished theory of free trade, direct 
taxation, and no tariif, with the full belief that they will coerce 
the Border States to join them, notwithstanding such a Con- 
stitution, under the pressure of necessary emancipation as the 
only alternative. A paltry State whose contributions to the 
Government, in the payment of duties and postages, does not 
near compensate the expense of furnishing her with mails, 
and a few custom-house and judicial officers, to reach at a 
single bound such a height of arrogant, dictatorial insolence, 
is beyond all example. 

Yet when thus recklessly pursuing her treasonable schemes 
for her own peculiar local benefit, regardless of the injury she 
may inflict on others, she modestly expects our sympathy and 
protection, whilst she is perpetrating her treason, and ac- 
complishing our destruction. 

In despite her grossly insulting, dictatorial arrogance, we 
are expected, submissively, to place ourselves under the self- 
assumed guidance of crack-brained fire-eaters, who have sig- 
nalized their statesmanship by rendering ours, according to the 
admission of one of themselves, " the most corrupt Govern- 
ment in the world ;" who have further signalized their capacity 
by breaking down the most powerful political party we have 



124 SOUTH CAROLINA, DISUNION, ETC. 

ever had ; who are holding out as among the chief allurements 
to disunion, and benefits of their Southern Confederacy, the 
reopening of the piratical slave trade ; a traffic that is de- 
nounced as infamous by the Declaration of Independence, and 
the concurring voice of all Christendom ; a traffic so infamous 
that the nation, with almost perfect unanimity, by her laws, 
classed it among the most detestable crimes, and awarded it 
the punishment due to highway robbery and murder. We 
are expected blindly to confide to such men the making for us 
of a new Confederacy, and new Constitution. 

These fire-eating gentry must excuse us. Kentucky ac- 
knowledges to no admiration for them, nor to any admiration 
or special partiality towards South Carolina. She can have no 
particular sympathy for a State that requires a property quali- 
fication for her representatives, — a State that submits herself 
to the government of an aristocracy of nabobs, one of whom 
proclaimed in the United States Senate the doctrine that 
" laboring men are everywhere the mud-sills of society," that 
" every man is a slave who lives by the wages of his labor." 
Thanks to the patriotic "Working-men of Louisville," who 
recently poured forth such a heart-warm, indignant protest 
against disunion, this nabob may now learn that neither they 
nor their numerous brethren of the great West will ever be- 
come the mud-sills of his impotent fire-eater Confederacy. 
Thanks, ten thousand thanks are due to those working-men 
for the outpouring of their unadulterated, strong, patriotic 
feelings, which has given to sorrowing, almost des]3onding 
hearts, the only glad pulsation that they have known during 
weary months of gloom. They have shown how Kentuckians 
will always feel and speak when they assert their manhood, 
and cast off the fetters of party ties and political leaders. They 
have shown that there are still real, live Kentuckians among 
us, worthy of our proud State, and the stock from which they 
are descended. With aching hearts, listening ears had long 
been waiting, almost in despair, for the true ring of the right 
Kentucky metal. It has come, at last, and thanks to the 
working-men of Louisville that it has. 

It is true that some of the States, but not so many by nearly 
one-half as charged by South Carolina, have grossly violated 



SOUTH CAROLINA, DISUNION, ETC. 125 

tlieir duty and the Constitution by abortive attempts of tlieir 
Legislatures to nullify the fugitive slave law. The law may 
need amendments in some of its details, to render it perfectly 
just, and especially better to guard against its being abused 
for the purposes of kidnapping. But that affords no justifica- 
tion for those attempts at nullification, which ought to be 
swept from the statute books of all the States. This the 
Border States have an interest in demanding, and in due time 
will demand under the penalty of retaliatory legislation. A 
slight application of the lex talionis by Kentucky would soon 
compel Ohio to repeal her obnoxious statute. She is the only 
one of our three near neighbors that has resorted to such 
statutes. Indiana and Illinois have habitually performed their 
duty towards us in this particular. A large majority of our 
recaptured fugitives have been taken by their owners, or by 
the citizens of those States, without the aid of any ofiicers of 
the law. Many years ago, when the fugitive slave law was 
much less efficient than now, Kentucky sent commissioneVs 
to the Ohio Legislature asking a statute to supply the de- 
ficiency, and the request was promptly granted. A similar 
application made now would, no doubt, result in the repeal 
of the obnoxious statute. It is true it has never had any 
effect in preventing the rendition of any fugitive upon which 
the Federal officers could lay their hands. The statute is 
treated by every one as a mere nullity, and there has never 
been a prosecution under it ; still it is offensive to Kentucky, 
tends to create bad feeling between the two States, and ought 
to be repealed. It was passed during a period of high excite- 
ment and resentful feeling, resulting from the repeal of the 
Missouri Compromise and the maltreatment of Northern men 
in the management of Kansas affairs. Ohio has had time to 
cool off, her resentment will be appeased by the admission of 
Kansas as a free State, and she is now in a mood to listen to 
our remonstrances, and see and do what is so essential to her 
own honor, to say nothing of justice to us. No doubt, on the 
application of Mar3'land and Virginia, for the sake of good 
neighborship, Pennsylvania will now do the same. The repeal 
of the nullifying statutes of Pennsylvania and Ohio would 
remove most of the Southern discontent against such legisla- 



126 SOUTH CAROLINA, DISUNION, ETC. 

tion, so far as it is based upon tlie actual loss of fugitives. 
After they have passed through those two States the chance 
of recapture is so very slight that they are not worth pursuing. 
The retention of such statutes by the other States would be of 
no substantial injury to the South, and only serve as degrading 
mementos of abortive efforts of impotent malice or revenge. 
This is the right method for settling disputes between the 
States ; but if that fails, we still have adequate remedy in the 
retaliatory legislation, recommended by Mr. Calhoun, as the 
true mode of redress against offending States, without a resort 
to disunion, which should be discarded from every true Ameri- 
can's mind as a remedy for nothing. Such a remedy is so 
grievous and costly, that sound minds have long settled in the 
belief that it can never yield adequate compensating benefits. 
That has always been the doctrine of Kentucky statesmen. 
The memorable answer of Mr. Clay to the question when he 
would consent to disunion, was the reiterated " never, never^ 
NEVER." Disunion on the slave line carries such obvious 
and inevitable destructive results to Kentucky, Tennessee, and 
Missouri, that no Utopian projector of a Southern Confederacy 
has ever yet had the ingenuity to suggest even the plausible 
semblance of any compensating benefit to those three States. 

No. in. 

THE SOUTH CAROLINA DECLARATION OF INDEPENDENCE. 

"Why all this loud modern clamor against the attempts of 
certain States to nullify the fugitive slave law? Is an at- 
tempt at nullification such a novelty to South Carolina ? Some 
of her fire-eaters have recently declared, in her convention, 
that they had always considered the law unconstitutional, and 
if so, it cannot be very blameworthy to attempt its nullification. 
But if otherwise, why has South Carolina never formally pro- 
tested against those attempts ? Why has her delegation never 
asked Congress to unite with her in such protest ? And why 
has she never resorted to the remedy for such grievances, that 
retaliatory legislation advised by her great leader, Calhoun ? 
"With what decency can she claim such abortive attempts at 
nullification, as sufficient cause for disunion, when her own 



SOUTH CAROLINA, DISUNION, ETC. 127 

people, and those of all the other extreme Southern States, 
have for years been successfullij nullifying our neutrality laws, 
and laws against the piratical slave trade, which she and they 
have practically re-opened ? With what greater propriety can 
she, or those other States, complain of obstructions to the re- 
covery of fugitives by mobs of free negroes, and the dregs of 
!N'orthern States, when she, and those her neighbors, allow 
mobs, under the countenance of the most respectable mem- 
bers of their society, to habitually insult and maltreat ISTorth- 
ern men and deprive them of their constitutional rights ? The 
instances are very numerous, where Northern men of respecta- 
bility have, without cause, other than that of their Northern 
residence, been compelled to leave unfinished business and 
depart from those States under the threat of lynch law. Some 
men who have been settled in those States with their families 
have been compelled so to leave for no cause but their North- 
ern birth, or, perhaps in addition, because when interrogated 
they would not admit that slavery was a divine institution. 
How many have been actually murdered for no other cause, is 
a dark secret which will never be fully disclosed. It is sus- 
pected that there has been nearly as many of such murders as 
there has been of owners obstructed in the recovery of fugi- 
tives. The instances of the latter are certainly not one in 
twenty, perhaps not one in fifty, when compared V7\i\\ the in- 
stances in which Northern men and women have been cause- 
lessly driven from the extreme Southern States, in contempt 
and despite of the express constitutional guarantee of their 
right to be there. Yet it is expected that we shall adopt the 
quarrel of men who thus perpetrate actual, effective nullification, 
and aid them in ruining this great nation and ourselves, 
because of attempted nullification by others. 

"We had thought, we of the Border States had thought, that 
we had something beside our large interest in slavery that 
was worthy our care and even our afifection. Among these 
are, our whole country, our whole nation, our several States, 
the great cause of civil liberty here and elsewhere, now and 
hereafter, the great cause of republican confederated Govern- 
ment, the love of peace and odium for civil war, the love for 
our children and their posterity, the strong desire for national, 



128 SOUTH CAROLINA, DISUNION, ETC. 

State, and individual prosperity, all dependent, together with 
the safety and permanent success of the slave institution itself, 
upon the preservation of the Union. But even if the slave 
institution were not thus dependent, we have no reason to 
deem it so transcendently important as to require us to over- 
look, or disregard entirely, for its sake, all those other great 
interests and natural feelings. Still less should it require us 
to discard all sense of justice, approving indiscriminately 
everything done in the cause of the slavery propaganda, and 
censuring everything done by the partisans of free-soilism. 
"We have the right, as it is our duty, impartially to weigh the 
faults on both sides, and many of us certainly do believe that 
the present crisis is full as much the fault of the Fire-eater 
Disunionists as of the Republicans ; and on the score of nulli- 
fication, that the former are more culpable than the latter. 

The only other great cause of complaint made by South 
Carolina, is the election of Lincoln. This cause for disunion 
has been so often discussed, and its insuiliciency proved as a 
thing by itself, that it need not be dwelt upon. But it is 
alleged that the election of a man of his principles indicated 
such hostility against slavery as to prove a settled purpose to 
abolish it. He acknowledges to a strong prejudice against it, 
that he believes it to be morally, socially, and politically wrong, 
that it would be all the better for the country if it had never 
existed ; but as it has grown up under the sanction of law, 
that Congress ought not to interfere with it in the States, even 
if it had the power, which he distinctly says it has not. He 
further says that the South is entitled to an efficient fugitive 
slave law, which it is the duty of the Government to enforce, 
and if all power over the subject of slavery were given to him, 
he does not know what he could do with such power, for the 
permanent benefit of either the blacks or whites, and certainly 
should not exert it for the purposes of immediate emancipation. 
Now, however objectionable to the South some of these opin- 
ions may be, yet it is an undoubted fact that these very same 
opinions were held by every President we have ever had, 
unless Jackson, Tyler, Taylor, and Polk be exceptions. 

But then it is said, there is his "irrepressible conflict" doc- 
trine, which is a novelty unknown to any of our Presidents. 



SOUTH CAROLINA, DISUNION, ETC. 129 

True it is a novelty, and wliat is mucli worse, as arrant non- 
sense as ever fell from the lips of man. It first came from a 
Virginian, now a member of Congress, of imputed disunion 
proclivities, and probably uttered in behalf of disunion. Mr. 
Lincoln adopted the significant phrase, together with the 
theory it implies, as an argument in favor of free-soil, and 
Mr. Seward took it from him and became its putative father. 
But with Mr. Lincoln it is a mere absurd theory of which he 
proposes no further practical application than as a justification 
for slavery prohibition in the Territories. The Fire-eater 
Disunionists raised such a clamor against the phrase as to 
make it a most potent bug-bear all through the South. Yet 
strange to say, no sooner did they cast ofi" their disguise, and 
avow themselves disunionists, than they adopted the whole 
theory in its fullest extent, and use it as a main argument in 
favor of disunion. They now say, sure enough there is an 
irrepressible conflict between free and slave labor, and there- 
fore the Union ought to be dissolved on the slave line. Thus 
they convert his absurd speculative theory into an indisputable 
fact, though it is clearly disproved by the nation's long ex- 
perience of more than a century, and make it the pretext for 
most tremendous practical action. Free and slave labor have 
been operating side by side for eighty long years, in adjoining 
States and in the same State, even closely intermixed in towns 
and on farms, with a prosperous success. 

But they further charge that Lincoln was ridiculous enough 
to say that a house divided against itself must fall — that the 
States must become all slave or all free — and as the IS'orthern 
States won't become slaveholding, and as the house won't fall, 
slavery is in the process of ultimate extinction. Seward was 
silly enough to adopt, also, this absurd, unstatesmanlike theory ; 
but neither of them proposed to aid the theory, or the verifi- 
cation of their fanciful opinions by any action on the institu- 
tion within the States, but spoke of it as what was to occur in 
the remote future, centuries hence, from natural causes alone, 
such as the irrepressible conflict. The disunionists have also 
adopted this shallow theory of the divided house. They insist 
upon it as a certainty that the house must fall — that there is 
17 



130 SOUTH CAROLINA, DISUNION, ETC. 

no use in waiting to see whether it is going to fell ; and, there- 
fore, they hasten out of it. 

They have fally adopted and put into practical use the 
"higher law" doctrine imputed to Seward in its worse sense. 
They have succeeded in fastening great odium upon him by 
inculcating the belief that he meant there was a higher law 
which would justify him in disregarding the Constitution. 
They are now doing themselves the very thing, for the sup- 
posed desire to do which they heaped such unstinted abuse 
upon him. They too now avow a higher law, which justifies 
them not merely in disregarding the Constitution, but in break- 
ing it down and trampling it under foot. The right of seces- 
sion, on which they are acting in their efforts to accomplish 
our destruction, is their higher law, and of a so much worse 
type than his, that whereas his only contemplated probable 
evasion, theirs is to be carried out by actual treason and civil 
war. 

By thus fully adopting the doctrines of the irrepressible con- 
flict, the divided house and the higher law, the disunionists 
are vindicating Lincoln's pretentions as a true prophet, and 
dignifying the jejune sciolist vagaries of him and Seward as 
the teachings of the true philosophy of government. 

There can be no truer utterance than that of a resolve of 
the Democratic Legislature of Tennessee, which says : "All 
the evils of the intense slavery agitation — all the discord, 
alienation, and bitter hatred between North and South — are 
the legitimate fruit, not of any necessary conflict between free 
and slave labor, but of a conflict between rival aspirants for 
official power and plunder." That great vice of a Republic, 
party feuds, together with the dextrous management of the 
disunionists, have brought about the present crisis. For party 
and disunion purposes the slavery question has been agitated 
until the whole nation has been sectionalized, byplaying.upon 
the opposite prejudices of North and South. The chagrin and 
hate caused by the defeat of the Democratic party, has been a 
great aid to the disunionists in precipitating the rebellion with 
such surprising rapidity. If disunion should come, it will be 
properly ascribable to the scramble of parties "for official 
power and plunder," rather than to the irrepressible conflict. 



SOUTH C A R L I X A , D I S U N I N , ETC. 131 

Aversion to aud apprehension of the Democratic party is one 
of the main reasons why conciliatory concessions cannot now 
be obtained from the iN'orth. If the Democratic party coukl 
be disbanded, there is no doubt that the Republican party 
would be prostrated before the next Congressional election. 

The South Carolina manifesto says that when Lincoln be- 
comes President, " the slaveholdiug States will no longer have 
the power of self-government or self-protection." Her apolo- 
gists also say, more distinctly what she means, that if not now, 
the South soon will be unable to protect its slave property 
against Northern aggression. This, if it were really felt, would 
be a dastard fear. But they who pretend to feel it are no 
cowards, and are hypocritically simulating an apprehension 
not felt. There are no words to express the scorn due to the 
affectation of such fear as a paltry pretext for disunion. Ken- 
tucky lies right in the path of any such aggression, and must 
be the first to bear the brunt, yet she feels no fear for her pro- 
perty. In the calm self-reliance of proper manhood she scorns 
all such danger. Her property is amply secured by the Con- 
stitution against all approaches of the law, and she cannot 
conceive of any body of men having the temerity to cross her 
border without law, to rob her of her property. She has the 
most undoubting confidence in her ability to protect herself 
against such lawless violence. Even supposing that most im- 
probable event that the Federal Government should become 
active participants in such an aggression against the South, 
are not her eight millions of people competent to their self- 
protection within the Union against so inefiicient a Govern- 
ment ? If not, how can they protect themselves against the 
North when it becomes a hostile, separate nation ; how protect 
herself against any other powerful nation ? Within the Union 
we should always have a divided North to resist, whilst out 
of the Union the united strength of the whole North would 
be arrayed against us. No Kentuckian would abate a single 
dollar in the price of his slaves on account of any such danger. 
The fear ought to be still less, if possible, farther South than 
■with us. There is really no such fear felt ; it is all pretence, 
gotten up as a pretext for disunion. What a slender induce- 



132 SOUTH CAROLINA, DISUNION, ETC. 

ment do tliey afford us to join a Soutliern Confederacy, when 
thus avowing its incompetency to self-protection ! 

Though the eight millions are superabundantly able to pro- 
tect themselves within the Union, yet their ability to properly 
protect themselves out of it against the eighteen millions who 
will be made inveterate enemies by the very act of separation, 
may well be doubted. By a very probable union with the 
British possessions, the North would at once become the owner 
of the largest commercial marine in the world, and upon that 
basis could soon create a naval marine equal to that of Eng- 
land. With a hardy, enterprising population of more than 
twenty millions, and with such a navy, or even the tenth of it, 
how could our eight millions cope with them ; how, indeed, 
even without such a junction with the British colonies ? With 
our ports blockaded, our whole commerce stopped, our agri- 
cultural products left to rot on our hands, the sinews of war 
dried up among us, we could be coerced into an ignominious 
submission without even an invasion of our long line of unde- 
fendable inland border. If we wanted the consolation to be 
derived from the glory of well stricken fields of battle, we 
should have to incur all the disadvantage of being ourselves 
the invaders. The South would exhibit the impetuous valor 
of the French, but it would be met by the stubborn courage 
of the English. The ultimate victory would be on the side of 
the greater numbers and the largest purse, aided by the only 
naval force. Though only little more than double our num- 
bers, the North would have more than quadruple our military 
strength. Yet we are seriously asked to give up our present 
prosperous condition, our present position of perfect security 
in the very centre of a powerful nation, to join an imbecile 
Confederacy that must forever remain in a condition of de- 
grading, mortifying inferiority to its more powerful neighbor. 
And all for what ? For the shallowest, flimsiest pretexts that 
ever were urged for severing a great prosperous nation into 
two hostile parts. 

Aye, but the Republicans threaten that if they ever get the 
power slavery shall be excluded from the Territories, and 
though the laws of climate and trade have inexorably pro- 
claimed the exclusion without any aid from Republicans, still 



SOUTH CAROLINA, DISUNION, ETC. 133 

tlie threat is an insult to the South, and Southern honor cannot 
brook an insult — we must dissolve the Union for revenge. K 
this be insult or injury, it is one which the South patiently and 
prosperously endured for sixty-four years, and in the instance 
of the Missouri Compromise it was inflicted by the procure- 
ment of nearly all the eminent men of the South. For this 
the Government of this great nation must be broken up, and 
the vast commercial and political interests of the South thrown 
into irretrievable ruin. This may be fire-eater chivalry, but 
with other people it will pass under a less polite designation. 
Kentucky will never put herself under the guidance of men 
who advise the cutting of her own throat to revenge an insult 
actually given ; still less will she follow the guidance of those 
who would advise a man to blow out his own brains to avoid 
an insult or an injury which is only threatened. This insult 
and Southern honor doctrine, if it is accompanied with a par- 
ticle of practical sense, must mean to dissolve the Union for 
the purpose of enabling the South to declare war against the 
ITorth ; for otherwise the honor will be lost, and the insult 
unavenged, just as much as if the South remains in the Union. 
Let the proposition, then, be stated in plain terms — the South 
secedes that she may go to war with the North. 

No. IV. 

A MISSISSIPPI VALLEY CONFEDERACY. 

"When a sensible people break up an old Government for the 
purpose of forming a new one, among the most important sub- 
jects for consideration Avill be the probable stability of the pro- 
posed new Government. To pull down an existing Govern- 
ment, even when bad, is an achievement of comparatively 
little merit ; but to erect upon its ruins a stable, good Govern- 
ment, is the very highest achievement of human wisdom. It 
is for such an achievement that our fathers have, heretofore, 
stood as the exemplars of the world, and received its admira- 
tion and applause. Let us then inquire into the probable sta- 
bility of a Confederacy of all the Southern States. As to the 
rickety concern, a cotton State Confederacy, its probable dura- 
tion is not worth talking about. Its durability and prosperity 



134 SOUTH CAROLINA, DISUNION, ETC. 

would be just what ought to be expected from fire-eater wis- 
dom. 

A Southern Confederacy would commence its career with a 
dower of hate among its citizens towards each other, which 
has seldom prevailed in a nation without bringing civil war. 
This might not, and probably would not, be the result in this 
instance, because they could and would be avoided by the 
milder modern process of secession. The hate which the Union 
men would bear to those who had dragged them into the Con- 
federacy, would be just what the Fire-eater now bears the Ab- 
olitionist. Hate begets hate, and Fire-eaters would reciprocate 
the feeling most cordially. There would be no great interest 
of reciprocated benefits, such as that now subsisting between 
the ISTorth and the South, to silence and overcome such feel- 
ings. The Eastern and Western cotton States would be mere 
rivals and competitors in the same branch of business without 
any commercial intercommunication. The two cities of Charles- 
ton and New Orleans, who are the promised recipients of nearly 
all the anticipated benefits, would start as rivals, and make the 
effects of their rivalry- felt before the Confederacy was even 
clothed with its new harness. The small amount of trade that 
would ever reach Charleston from Kentucky, Tennessee, and 
Missouri, would be a constant bone of contention between 
them. Louisiana would soon agitate, and successfully agitate, 
for a Southwestern Confederacy. The thing certainly would 
not last through the first vigorously contested Presidential elec- 
tion between an Eastern and "Western candidate. There would 
be nothing to keep it together, no love of country, no mutual 
pride in a powerful, prosperous country, no bright memories 
to stimulate a national feeling; but in lieu thereof the enduring 
hate of those Union-loving men who had suffered under the 
violation of all the patriotic feelings they ever knew, or Avish 
to know, and the rending asunder the strongest ligaments of 
the human heart. Even the fact of slaveholding, though so 
violent an incentive to jealous sectional passion, and the main 
cause of the Confederacy, would do little to keep it together, 
because it would cease to be even a peculiarity where all would 
be slaveholders. Its disadvantageous comparison with its more 
prosperous neighbor, its proven incapacity to take rank among 



SOUTH CAROLINA, DISUNION, ETC. 135 

tlie more respectable nations, together with, the disappointment 
of all those golden dreams with which we were seduced into 
disunion, would make its citizens contemplate the Confederacy 
with contempt and loathing. The smallest amount of sectional 
jealousy, of conflicting sectional interest, would at once rend 
it into two parts. How many other sub-divisions it would ulti- 
mately fall into it is needless to speculate. 

Gloomy as the prospect is, we must make up our minds to 
the stern fact, that in less than ninety days eight cotton States 
will have agreed to unite in another Confederacy, and the 
chances are, that during the present year, Virginia and Xorth 
Carolina may join them. The question then will be up for 
consideration by our three Border States, Kentucky, Tennes- 
see, and Missouri, what shall they do ? The question is already 
agitating all their citizens in every neighborhood. Neighbor 
and neighbor, friend and friend, brother and brother, and even 
father and son, are already quarreling over it. They are doing 
this upon a false issue. They are quarreling as if the only 
alternative for these three States was to remain in the Union, 
or join the South. This is a great error. Such is not our only 
alternative. "We have a choice vastly better for us than either 
of those in such a contingency. It is to aid in forming a 3Iis- 
sissippi Valley Confederacy. 

As a relief to the manual labor of composition to an old man, 
he will reproduce here what he wrote on this subject two years 
ago, and published in a series of letters addressed to Hon. J. 
J. Crittenden : 

" In answer to a claim made on you, Mr. Crittenden, as a 
Southern man, to aid the South in perpetrating the Lecompton 
iniquity, you properly said you could not be influenced by such 
consideration ; but, even if you could, that the South had no 
such claim on you : that Kentuckians were neither Northern 
or Southern, but were Western people. You reminded them 
that there was such a section of our country as the great valley 
of the ^Mississippi ; that Kentucky was in the centre of that val- 
ley ; and that, if she belonged to any section, the whole of that 
valley was her section. In so acting and in so urging, you have 
earned the thanks of every Kentuckian. It was time that the 
politicians should be informed of these facts ; and that, in their 



136 SOUTH CAROLINA, DISUNION, ETC. 

treasonable macliiiiatioii for splitting up our country into sepa- 
rate confederacies, they must bear in mind that our great val- 
ley, our section, is one and indivisible. 

"An eminent Democratic Senator from Soutb Carolina, in 
projecting, in debate, a Southern Confederacy, seemed to have 
remembered our valley, and to have had some appreciation of 
its value. In setting forth the magnitude and importance of 
his proposed Southern Confederacy, he very complacently ap- 
propriated the whole valley as a mere appanage of the more 
Southern cotton-growing States. The extreme modesty and 
reasonableness of this appropriation will be apparent when we 
recollect that those States are only nine in number, with a white 
population of not more than three millions, — whilst the great 
valley, with its appendages, Michigan and Texas, already con- 
tains fourteen States, with a large portion of two others, and 
a white population of more than eleven millions. Leaving 
out its four cotton States, the valley contains a white popula- 
tion of more than ten millions. Counting only the settled por- 
tion of its territory, excluding all but a third of Texas, and 
going no further west than Kansas, the valley contains double 
as much territory as all the States east of it. When its popu- 
lation is only half as dense as that of Xentuck}^, or one-tenth 
that of Massachusetts, it will contain a population of one hun- 
dred millions. If the rate of increase indicated by the last two 
decades of the census is kept up, it will, in the short space of 
ten years, have fifteen millions of whites. K not so now, it is 
the predetermined seat of American empire. In less than ten 
years its absolute sway as mistress of American power will be 
uncontrollable and indestructible. 

" The diversity of climate in the valley, and of agricultural, 
commercial, and industrial pursuits among its people, serves to 
produce a homogenity of commercial interest ; whilst its geo- 
graphical position compels it into unity as the common home 
of one, and only one, people. A most prosperous home it has 
been. It has increased in population and wealth with a rapidity 
never paralleled in the history of the world. Unmixed pros- 
perity reigns throughout its wide bound. Its march is onward, 
rapidly onward, to still greater strength, wealth, and prosperity. 
It knows no stagnation anywhere. It is rearing a hardy, Indus- 



SOUTH CAKOLINA, DISUNION, ETC. 137 

trious, vigorous race of freemen, such as the world never saw. 
It honors, encourages, and rewards all honest labor, whilst it 
scorns the sluggard. 

" This is the mighty home of ours which this modest Caro- 
linian would appropriate as a mere appendage to his nine cot- 
ton States, with their three millions of whites, in the formation 
of his proposed Southern Confederacy, — States, one-third of 
whom are laboring under a lethargic paralysis, like that of their 
worn-out, poor land ; who dishonor and decry manual labor 
among whites, and sent Senators to Congress to denounce all 
white men as slaves ' who live by the wages of their labor,' — 
States that have not sufficient mechanical skill and industry to 
manufacture their own plows and axes, nor their hats and 
shoes, — States who know no manual industry but that of the 
slave, and the bulk of whose population that have not made 
their escape to richer lands are sluggishly attenuating a languid, 
sluggard existence under the enervating influence of their cli- 
mate. The least arrogant shape in which the Senator's idea 
can be presented is, that our ten States, with their ten millions 
of whites, will permit their future destiny to be controlled and 
dictated to them by those nine States and their three millions 
of whites. The impudence of the assumption is on a par with 
the iniquity of the scheme. 

" Land-locked though we are, our prosperity, like that of 
every other portion of the Union, depends upon our access to 
foreign markets. Let us shape this proposed Southern Con- 
federacy, and then see what it promises us by way of outlet 
and protection to our commerce on the ocean. To avoid a 
mere geographical line of separation, and for other obvious 
reasons, Maryland and Delaware would be compelled to go 
with the North. The Carolina Senator does not seem to ex- 
pect, with any confidence, that the free States of our valley 
will join his Southern Confederacy. We know certainly that 
they would not. To say nothing of their prejudices, their 
commercial interests preponderate decidedly the other way. 
The Potomac and the Chesapeake would be the northeastern, 
whilst the Ohio, Iowa, and Kansas, would be the northwest- 
ern boundary of the Southern Confederacy. The wliole At- 
lantic and Gulf coast, from the Chesapeake to Mexico, has 
18 



138 SOUTH CAROLINA, D I S U N I N, E T C. 

Norfolk for its only commercial harbor that can float a frigate. 
The States bordering that long line of coast have compara- 
tively very little shipping, and no means of creating either a 
commercial or naval marine. The most paltry naval power, 
Spain, Portugal, or even Denmark, could blockade all our 
ports, and prevent our access to the ocean. The little ocean 
commerce of our own that we should have would be the prey 
of pirates. We should have to buy a transit for our commerce 
from the Northern Confederacy, or, as has been recently sug- 
gested by a South Carolina paper, ignominiously place our- 
selves under the protection of some foreign power, and hire its 
aid to relieve us from the blockade. "What a nation this would 
be ! What a proud, prosperous Confederacy the scheme pro- 
mises us ! 

" The scheme is that Kentucky and Missouri shall give up 
their enviable central position in the very heart of a great, 
prosperous nation, and become the mere frontier appendages 
of an impotent Confederacy, and prevent, if we can, the North- 
ern hordes from invading its Southern climes. Suppose the 
separation to have taken place, and the inevitable war with the 
Northern Confederacy to have ensued, what aid would Ken- 
tucky and Missouri receive from South Carolina, Georgia, and 
Alabama, in protecting our long line of indefensible frontier ? 
An old Kentuckian answered the question by saying, they 
would offer us any number of gentlemen with epaulets, but 
not a single man with knapsack and musket. 

"Why are Kentucky and Missouri to adopt such a position 
as that, in lieu of their present one of absolute security against 
foreign invasion, with free access to the ocean at the North 
and the South, and a powerful nation to protect their access to 
foreign markets ? What is the compensating benefit ? There 
is none, in fact, nor do the disunionists even pretend that there 
is. All that we are to achieve is to get rid of associating, under 
the same Government, with the Northern people, who do not 
admire negro slavery, and have the ill manners or the impu- 
dence to tell us so. This is the whole grievance from which 
we are sufl:ering, and which would be remedied by a separa- 
tion. Wrong to us, or aggression upon our rights as slave- 



SOUTH CAROLINA, DISUNION, ETC. 139 

holders by fhe Federal Governmeut, there has been none, ab- 
solutely none. 

"Aye, there are those among us, the tools of party, who 
have had the impudence to upbraid us with imputed want of 
proper sectional sympathy, that we will not blindfolded aid 
these bad men in hastening our perdition. Let it be known 
by these revilers, and all others, from this time forth, that the 
people of Kentucky, Tennessee, and Missouri, owe no fealty 
to any section which is not in strict subordination to the higher, 
nobler, worthier fealty which they owe to their country, their 
whole country — that is, to the Union. But if there is any sec- 
tion, above all others, to which they are bound in close sym- 
pathy by the ties of affection and permanent interest, it is their 
own section — that of which they are the heart and centre, the 
great valley of the MississijJ'pi. When that section calls for dis- 
union, Kentucky, Tennessee, and Missouri, will respectfully 
give ear to the reasons for such a national calamity — for cala- 
mity it certainly will be, come when and how it may. Till then, 
till that sad day comes, Kentuckians, Tennesseeans, and Mis- 
sourians, will listen to no counsels, make no combinations 
touching the Union, except from and with their brethren of 
the valley, — and that, too, only for its presentation and its 
security. 

" What complaint have we of this valley to make of our 
country or our position ? When did such rapid growth in 
wealth and numbers, — such peace, plenty, happiness, and pros- 
perity, individual and collective, ever attend the career of any 
other people? All history affords no parallel. Of all the reg- 
ular pursuits of industry among us, which have most certainly 
and most rapidly yielded large fortunes, cotton-growing stands 
pre-eminent. Yet, strange to say, it is among the cotton- 
growers of three of the States of our valley that alone is to be 
found, anywhere throughout the valley, the least taint of dis- 
loyalty to the Union. They amongst us who have been most 
benefited by the Union, they who have most prospered under 
it, they who are most dependent upon its great, undivided 
strength for the safe, continuous export of their great staple, 
they are its only revilers. Nineteen-twentieths, aye, ninety- 
nine hundredths of their Northern brethren of this great val- 



140 SOUTH CAROLINA, DISUNION, ETC. 

ley cry shame upon them, not merely for disloyalty to our 
section, but for tlie far worse disloyalty to our common mo- 
ther, to our great, prosperous, glorious, all-lovable country. 

" Can it be that any portion of these men are blinded with 
the foolish belief that the delta of the Mississippi, that great 
key to the commerce of our valley, belongs to the people of 
Mississippi and Louisiana, and that they can so use it as to 
coerce our submission to their suicidal projects? Surely they 
cannot be sane, if any there be who so think. They are the 
occupants, not the proprietors. The proprietorship is with the 
whole eleven millions of whites who occupy the great valley. 
To assert a separate, exclusive proprietorship in themselves 
would be as wise as to attempt to stop the flow of the great 
Father of Rivers. Any puny effort, with such an obj ect, would 
not be more futile than an attempt by them to resist that 
!N'orthern human torrent which will certainly pour upon them 
whenever it becomes necessary to prove the true ownership 
and masterdom of the delta. 

"All sectional conventions are more or less impolitic, what- 
ever maybe their object. They tend to engender sectionalism, 
the great bane of our country. The people of Kentucky, Ten- 
nessee, and Missouri, have sedulously abstained from them 
with the most laudable pertinacity. But when so many secret 
and indirect, overt and direct efforts are constantly being made 
to foment jealousies, ill-will, and disaffection among the people 
of our valley — in fact, to separate us upon the slave-line, which 
runs straight through the centre of the valley — shall nothing 
be done to counteract these machinations, nothing to evoke 
an expression of popular sentiment in their condemnation ? 
"Whilst such efforts are making to pull us to pieces, whilst to 
that end unscrupulous use is made of that vile but powerful 
lever, party feeling, and of that still viler and more powerful 
agent, sectional feeling, shall nothing be done to revive and 
keep alive and pure that old-fashioned national feeling and 
patriotism that have made us what we are ? Whilst insidious 
enemies are doing all they can to pull us asunder, shall we do 
nothing towards hugging closer and more firmly together? 
This thing has been too long neglected; it has been too long 
left to political parties to play upon our passions and preju- 



SOUTH CAROLINA, DISUNION, ETC. 141 

dices for their selfish party ends. The occasion is worthy of a 
great stir and political revival among the whole people of the 
valley. Either through legislative resolves, or the action of 
primary assemhlies, something should be done to manifest the 
fijxed, almost unanimous resolve of the people of this great 
valley to continue together and remain forever one and indi- 
visible. Let that mighty word be once spoken ; let all the 
people of the valley, with comparative unanimity, confirm the 
fiat of nature, and pronounce our valley one and indivisible, 
and you strengthen, if you do not virtually re-establish, the 
foundation of our Government. Whilst the valley hangs to- 
gether, our commerce will forever bind to us, in willing bonds, 
all the people between the Hudson and the Potomac ; and our 
commerce, as one power, will equally bind to us, in willing or 
unwilling bonds, the States of the lower Mississippi. The 
narrow strip lying south of the Potomac and east of the valley, 
would be too insignificant, as to population and national re- 
sources, ever to desire to become a separate Confederacy, even 
if a rational motive could be conjectured for desiring separa- 
tion upon such a geographical basis as that. If our valley re- 
mains firmly united, no human ingenuity can devise a line of 
probable separation. It may even be affirmed that, so long as 
our valley continues united, the Union will he indestructible." 

It is time that the suo-o-estions of this letter should be seri- 
ously considered by the people of Kentucky, Tennessee, and 
Missouri, and that they were doing whatever may be necessary 
to prevent our great valley from being divided. An eminent 
French traveller of great ability, and of unrivaled reputation 
as judicious commentator upon our political institutions, has 
.said that our valley is " the most magnificent home that God has 
anywhere provided for man." The enlightened Senator Ham- 
mond, of South Carolina, in the speech before alluded to, 
said : " The great valley of the Mississippi, now the real and 
soon to be the acknowledged seat of the empire of the world." 
" There is the great Mississippi, a bond of union made by nature 
herself. She will maintain it forever." Let us follow the guid- 
ance of nature in framing a new Confederacy, and trust to her 
persuasive, flattering promise that she will maintain its Union 
forever. If we can preserve our magnificent home in its en- 



142 SOUTH CAROLINA, DISUNION, ETC 

tirety at the present juncture, we may well liope that the 
strengthening influence of natural causes will preserve it un- 
broken forever. 

To this end the Legislatures of our three Border States 
should immediately recommend such a Confederacy, in case 
the eight cotton States shall actually resolve on secession, as a 
better alternative for them than either remaining in the Union 
or joining a Confederacy of the slave States. In that contin- 
gency, and with a view to a Valley Confederacy, recommend 
all the States of the valley to meet in convention and adopt a 
Constitution for the new Union. If started at once, this can 
be accomplished by the time that the other Border Slave States 
will be ready for final action. 

As to the success of such a plan there can be no reasonable 
doubt. The States north of the Ohio have the same repug- 
nance to disunion on the slave line that we have. In the 
necessary avoidance of such a disaster, they will cheerfully 
give all reasonable guarantees in the new Constitution on the 
slavery question. They will be apt to concede everything 
Kentucky, Tennessee, and Missouri will ask as reasonable and 
necessary to the harmony of the new Confederacy. The con- 
vention would be composed of an equal number of slave and 
free States, fourteen in all ; or if Michigan and Texas be left 
out as not properly belonging to the valley, then there would 
be twelve States. Or, what would be better, take Kansas into 
the convention, though not yet a State, thereby giving the free 
States the preponderance in number, which they must ulti- 
mately possess, and thereby affording better earnest that the 
guarantees will be faithfully adhered to. 

This plan obviates two main difficulties in obtaining I^orth- 
ern concession toward conciliation. The political power of 
the North, both in Congress and the Legislatures, is in the 
hands of the Republican party. That party was created for 
the purpose of overthrowing the Democratic party ; and party 
leaders will never concede, voluntarily, what tends to the de- 
feat of their own party, and the re-elevation of their hated 
and defeated adversaries. The other, and the main difficulty 
is, that concession made now would look as if the ISTorth was 
succumbing to Southern bravado and threats. This sort of 



SOUTH CAROLINA, DISUNION, ETC. 143 

submission it has definitely made up its mind against, what- 
ever may be the penalty. It is, therefore, useless to look to 
Congressional compromises for getting us out of our danger. 
Without the most ample cooling time, which the cotton States 
have not the slightest intention of yielding, the present temper 
of feeling at the North will cause the rejection of any com- 
promise. In forming a Valley Union, on the basis of a proper 
compromise, neither of these difficulties would occur. Its 
formation would not necessarily involve the resuscitation of 
the Democratic party in the new Union ; and the needful con- 
cessions would not be made under the threats, but yielded to 
the friendly solicitation of the slave States of the valley. 

It is true that much the larger amount of the trade of the 
Northwest tends to the East, and not to the South, and if 
weighed in merely commercial scales, the question of connec- 
tion, as between the two, would preponderate in favor of the 
East. But that is not so. The question of peace or warfare 
in the valley, are involved in the decision. It has heretofore 
been the almost undivided opinion of our statesmen and con- 
siderate men of every grade, whose opinions are at all worth 
quoting, that disunion on the slave line carries with it, as a 
necessary incident, immediate, protracted warfare, all through 
the valley. On the contrary, division of the Northwest from 
the East involves no such horrible evil as a necessary conse- 
quence. The commercial instincts and good sense can well 
be relied on to preserve the most amicable relations with the 
valley. The sagacity of our neighbors across the Ohio will 
show them that the commercial interests of the East can be 
safely relied on for much more than that. The Valley Con- 
federacy once formed, there would be a competition of alacrity 
of all between the Hudson and the Potomac, in seeking ad- 
mission into our new Union. Western Virginia would be 
certain to join us, and the fear of severance on the Blue Ridge 
would compel all Virginia to do so. 

Should Louisiana and Mississippi obstinately refuse to take 
part in the proposed convention, though much to be regretted, 
yet their refusal would be no serious obstruction to a new 
Union embracing the entire valley. The Confederacy once 
formed, under the authority of the ten or eleven millions of 



144 SOUTH CAROLINA, DISUNION, ETC. 

whites inhabiting the upper part of the valley, the six hundred 
thousand whites of Louisiana and Mississippi would never be 
insane enough to offer resistance ; but if they did, it would be 
quite easy to make them know to whom the valley and its 
great river belong. In the choice between the attitudes of 
associated States and subjugated Provinces they would never 
hesitate. 

After the iN'orth and East have joined us, the Atlantic Cot- 
ton States would not long delay to do the same. Then the 
necessary compromise amendments of the Constitution can be 
obtained, without either section seemingly yielding to the 
other, without even supposed loss of honor or pride to either. 
Thus, and thus only, can the good ship receive a needful, 
durable repair, and without the loss of a single plank, again 
move forward majestically on her hopeful voyage to a glori- 
ously immortal destiny. But should this brilliant result not 
be entirely attained, still our three Border Slave States will 
accomplish a new Confederacy, without bloodshed, far better 
for all their vital, permanent interests than any other that can 
be carved out of the dissevered Union. 

This is the last hope for Kentucky to avoid that utter ruin 
which her statesmen have uniformly prognosticated as the 
inevitable result of disunion upon the slave line ; a ruin that 
would equally fall upon Missouri, and in a great, though lesser 
degree, upon Tennessee also. 



DISUNION AND THE POLICY OF KENTUCKY. 145 



CHAPTER XII. 

Apkil 10, 1861, 
DISUNION AND THE POLICY OF KENTUCKY. 

Brevity requires the proposed exposition of views on this 
great topic to be confined mainly to the statement of indis- 
putable facts and principles without their discussion. 

THE POSITION AND POLICY OF KENTUCKY. 

Until recently there was no difference of opinion among her 
sons, that the preservation of the Union was the great para- 
mount political interest of Kentucky. None of her sons were 
ever more deeply committed or pledged to that opinion than 
our present Governor, and the leaders of his party who aided 
him in our last Gubernatorial canvass. They fully corroborated 
the inculcations of all our other political teachers, that disunion 
on the slave line is irretrievable ruin to Kentucky. 

ITo man has ever been ingenious enough to point out a single 
benefit that Kentucky can derive from disunion. 

N'o man can honestly deny the abounding benefits that Ken- 
tucky has received, and must continue to receive, from the 
Union. 

No man can point out a single injury or wi'ong that Ken- 
tucky has ever received from the National Government. 

No man can honestly deny that the Union we now have is 
the very best Confederacy that can be devised for the vital per- 
manent interests of Kentucky. 

No man can honestly deny that the great body of the people 
of Kentucky, four-fifths of them at least, are loyally devoted 
to the Union, and that its destruction would call from them a 
prolonged wail of distress such as proceeds only from the vio- 
lation of the most cherished feelings of the human heart. 

The teaching of all our statesmen has heretofore been, that 
19 



146 DISUNION AND THE POLICY OF KENTUCKY. 

a severance of the Union will be inevitably accompanied, or 
soon followed, by a bitter continued warfare between the severed 
parts. As incident to the warfare, they taught us to expect the 
sacking and burning of all our river towns, and the interior of 
Kentucky being rendered the battle-field of contending armies. 
Mr. Clay said : " War and the dissolution of the Union are 
identical and inseparable. If we were to separate by agree- 
ment, war would soon break out between its several portions." 
This war would be waged with the chance of success for the 
South that there is in a fight of eight men against eighteen ; 
or rather, of eight men against forty, if we properly consider 
the military advantages of the I^orth in its greater condensa- 
tion of population, its greater railroad facilities, its larger purse, 
and its exclusive naval power. 

Every intelligent man knows, that after disunion on the slave 
line the loss of our fugitive slaves would be increased from ten 
to twenty-fold ; that this would cause such insubordinate rest- 
lessness among the slaves, with such disquiet among their own- 
ers, that most of them would be carried from Kentucky. Their 
forced sale in our overstocked market, with such sudden depre- 
ciation of their labor, before a substitute could be supplied, 
would cause immense injury to their owners and the great 
agricultural interest of the State. 

Considerate men look to civil war among ourselves in our 
own State, as the possible result of an efibrt to drag Kentucky 
out of the Union for existing causes. If attempted by illegal 
means, intimidation and precipitation, they deem that result 
inevitable. 

All this being so, there seems scarce room for difierence of 
opinion among her sons as to the true policy of Kentucky in 
this crisis of her fate. It cannot be better expressed than in 
the language of her patriot Crittenden : " Let Kentucky stand 
by the Union which has conferred upon her so much honor, so 
much glory, so much liberty, so much prosperity, so much 
happiness." .... "Take care of the Union, compromise for 
it ; do anything for it ; take care of it, and it will take care of 
you. Yes, sir, let us take care of the Union and it will take 
care of us." 

Such indeed seems to be her plain, and should be her un- 



DISUNION AND THE POLICY OF KENTUCKY. 147 

doubting policy. Preserve the Union and it will 2^r€se7've Ken- 
tucTcy. But for those twin offspring of the great arch-enemy, 
party ties and party spirit, such wouki be the ahnost unani- 
mous voice of Kentuckians. What a melancholy illustration 
is now being given in this nation of the verity of my denun- 
ciation of party spirit written twenty years ago : " It is the evil 
genius of Republics. It is that evil genius which has met, and 
which sooner or later will meet, the last patriot of every free 
country at its fatal Phillippi." What but that fell-spirit has 
caused such precipitate success to secession, wreaking party 
vengeance through the ruin of our country ? What, but that 
spirit, its ties and its supposed party interests, prevent Ken- 
tuckians from rallying together, clinging together, counselling 
together, like a band of loving brothers, till they have rescued 
their good mother from the tremendous peril impending over 
her ? Knowing as we all do, that there is no cause for haste, — 
that Kentucky may wait a year or five years before making her 
final decision, and she will still be welcomed with open arms 
wherever she may determine to go, — let us use this abundant 
leisure for the cooling and expurgating of party feeling among 
us. Till that is done we shall not be fitted for sitting in judg- 
ment upon her final destiny. 

Preserve the Union, being the policy of Kentucky, it involves 
the inquiry as to the chance and the mode of its restoration 
from the effects of secession. 

KESTORATION. 

Restoration, or reconstruction, as generally termed, was the 
delusive promise with which, until recently, the secession sym- 
pathizers tried to lull the fears of the Border States. Mr. Davis, 
the acting President; and Mr. Stephens, the acting Vice-Presi- 
dent, of the so-called Southern Confederacy, in recent speeches, 
have expressly repudiated all idea of reconstruction. The 
seceding press habitually does the same. Private information 
as to the conversation and views of prominent citizens in the 
seceding States tells the same. With one accord, ofiicials, press, 
and citizens, all proclaim that they neither expect nor desire 
reconstruction. This we can the more readily believe because 
it is well known that the very men who have control of politi- 



148 D I S U X 10 X AND THE POLICY OF KENTUCKY. 

cal power in tliose States are part of that numerous band of 
traitorous conspirators, who for many years past have been 
plotting the destruction of the Union. Furthermore, because 
those States have no sort of interest in either the Territorial 
or the fugitive slave questions which are embroiling the na- 
tion ; not in the first, because they have neither surplus white 
or slave population with which to colonize new territory, but 
anxiously desire an accession of both ; and not in the second, 
because they never lose fugitives by escape into free States. 
Having no interest in those questions, they constituted no part 
of the motive for secession, and of course their adjustment will 
afibrd no inducement for a return of the Union. The concilia- 
tion of the seceders may therefore be properly overlooked in 
any scheme of adjustment between the l^orth and the Border 
States. Their return, and the proper concessions from the 
Korth, must both be waited for, till the people of the two sec- 
tions have had cooling time and sufficient opportunity to change 
their political rulers. 

That such change of rulers will take place at the North, we 
have every reason to hope and believe. Such is the informa- 
tion and belief of a majority of our delegates to the Peace 
Conference, and of our Union members of Congress. The 
action of the Republicans during the last session, when prop- 
erly considered, encourages that belief. My belief is, that 
proper action on the part of the slave State delegates, would 
have promptly procured a satisfactory adjustment from the 
Conference, which would have been ratified by Congress, and 
all our national troubles in a train of settlement. This could 
have been done by even a majority of those delegates accept- 
ing the Adams proposition, as the basis of compromise on the 
territorial question. Upon mature reflection, it would have 
proved satisfactory to all the Border Slave States, and we have 
every reason to believe that it, or its equivalent, would still be 
yielded by the jSTorth. 

In my opinion, the Adams proposition on the territorial 
question, was as beneficial to the South as the Crittenden prop- 
osition on that point, and preferable, because it settled the 
question at once, without waiting for an amendment of the 
Constitution. In this opinion most of my intelligent acquaint- 



DISUNION AND THE POLICY OF KENTUCKY. 1-49 

ances concur, as did also many of our eminent citizens from 
different parts of tlie State, met with at the January conven- 
tions in tliis place and at Frankfort, during tlie January ses- 
sion of the Legislature. It was said at Fraidvfort tliat some 
leading Democrats had expressed the same opinion. 

As there is no possible chance of ever introducing slavery 
north of ISTew Mexico, the destiny of that Territory involves 
the whole practical subject of dispute between the two sections. 
Most of its soil being sterile, and there being no easy access to 
market, it is very improbable that, within any short time, the 
Territory can possess any considerable number of African 
slaves. But fifty years hence, when the South will have six- 
teen millions of slaves, and their value greatly reduced, some 
thousands may be carried there. As to the matter of contro- 
versy between the Korth and South, the Territory is intrinsi- 
cally of very little importance to either section, though its ulti- 
mate destination is probably that of a slave State. 

Should the Adams proposition not be satisfactory to the 
Border States, there can be little doubt that the proposition 
of the Peace Conference would be so, and that it would be 
yielded by the North. Though it met determined opposition 
from the delegates of most of the Northern States, yet those 
delegates were ultra party men, who do not represent the pre- 
sent popular sentiment of the North. The Republican patty 
would not survive the odium of having so materially aided the 
fire-eater disunionists in the infiiction of our national calamity, 
as by the refusal of such a proposition. It has enough of that 
sort of odium to bear from the well-founded suspicion that 
many of its prominent leaders are themselves disunionists. 
The ultimate fate of all disunionists, North and South, together 
with their aiders and abettors, is political death, without resur- 
rection. That superlative folly, the repeal of the Missouri 
Compromise, and in connection with the alleged atrocities in 
Kansas, the attempt to force the Lecompton "swindle" upon 
Kansas, and the corruptions of the Government under Demo- 
cratic rule, are the causes of the Republican success at the late 
election. The admission of Kansas as a free State has avenged 
her alleged wrongs, as also the alleged breach of sectional and 
party faith in the repeal of the Compromise ; and the defeat of 



150 DISUNION AND THE POLICY OF KENTUCKY. 

tlie Democratic party has adequately punished it for the cor- 
ruptions of its administration. The Kepublican party must 
hereafter stand exckisively on its own narrow basis, that single 
sectional idea which is sustained by neither justice nor policy, 
a mere abstraction of not the least practical importance to 
either i!^orth or South. 

The pretence of following in the footsteps of the fathers of 
the Hepublic is h^'pocritically untrue. Their action, based on 
both policy and justice, was to allow and protect, or to disal- 
low and prohibit slavery, according to climate. Whereas, the 
Republican is to prohibit it in all territories, without regard 
to climate or the wishes of the people — a plan which only serves 
to aid the disunionists in convincing the South of malignant 
hostility in the Korth. Furthermore, whatever of negro phi- 
lanthropy there may be in the composition of the Republican 
party, it is outraged by this policy of restricting the spread of 
slavery, as nothing is better known than that condensation en- 
hances, whilst expansion alleviates the evil to the slaves them- 
selves. It is contrary to all rational presumption that the 
intelligent, practical people of the l^orth will permit the ruin 
of the peace and commercial aiFairs of this great nation, for 
the sake of sustaining a political party in the senseless pursuit 
of so unjust, so impolitic an abstraction. They are not a people 
to indulge politicians, at such an expense, in keeping up a sys- 
tem of irritation for the mere purpose of expressing the ma- 
lignity of those politicians against the South, or for forwarding 
their sinister views against the Union. It is equally incredible 
that sober people, I^orth or South, will permit the Union to 
be broken up on the trivial question whether, fifty years hence, 
a few thousand out of sixteen millions of slaves shall be lo- 
cated in sterile, unimportant I^ew Mexico. 

The seceding States havino; no interest in either the terri- 
torial or fugitive slave question, and they being a mere hollow 
pretence for a causeless treason, whatever satisfies the Border 
States ought to satisfy them. A majority of the slave States — 
including all those interested in those subjects — avast ma- 
jority of the people of the slave States having decided that 
there is no existing cause for secession, it would be the duty 
of the seceding States at once to return, if the vindication of 



DISUNION AND THE POLICY OF KENTUCKY. 151 

Southern riglits were the real motive for their secession. But 
such not being the motive, nor any part of the real motive of 
the leaders, those States will never return until their people 
can wrest the power from the hands of those pernicious traitors. 
Till then we must have patience ; but in the meantime, instead 
of wasting our sympathies upon those who have no sympathy 
for us, but are seeking our ruin, we must by a rational, rea- 
sonable adjustment, seek to consolidate the Union feeling in 
the Border Slave States, without regard to the acceptability of 
such adjustment to the seceding States. That once done, we 
can advisedly determine what is due to ourselves in any final 
adjustment. If Virginia and iN^orth Carolina can, without too 
much detriment to themselves, permit the Atlantic States and 
Alabama to secede, why let them go ; we of the West shall not 
object. "With most of us the final exit of South Carolina 
would be deemed a happy riddance. For a parity of reason, 
Delaware, Maryland, Virginia, and North Carolina will permit 
Kentucky, Tennessee, ISIissouri, and Arkansas to contest the 
same question as to Louisiana and Mississippi. As to that 
hard bargain, the ungrateful, perfidious Texas, nothing need 
be said. But as to Louisiana and Mississippi, much may well 
be said, as perchance much may have to be done. 

Thus far the secessionists have had everything their own 
way. With the exception of Major Anderson, everything and 
everybody has seemed to quail before them. Whether it was 
the enormity of the crime or the enormity of the peril, the 
Government and the nation have seemed alike appalled. 
Every solicitude seems to have been directed to keeping the 
career of the seceder unobstructed, and to prevent their being 
irritated. A natural and proper aversion to civil war, carried 
somewhat too far, has caused ever}i:hing to be done, or left 
undone, in avoidance of a collision. !N'ot appreciating or 
caring for the motive of this leniency, they have availed them- 
selves of it with the most unscrupulous audacity. This thing 
has gone too far. It ought to stop. With arms in their hands, 
they defiantly renounce us as their countrymen. For reasons 
of their own, they have j)ermancntly left us to seek a sepa- 
rate destiny. Reconstruction is what they never meant, and 
frankly tell us they will never permit. Away then with that 



152 DISUNION AND THE POLICY OF KENTUCKY. 

mawkish, unmanly sensibility wliich has caused the wasting 
upon them of so much misapplied sympathy. They are not 
mere erring brothers, whom time may soothe and restore to 
their senses. They are bold, inexorable men who are seeking 
our ruin, though they may be accomplishing their own at the 
same time. They are those worst enemies that any country 
can possibly have, resolute — armed traitors. As such we should 
view them, and propose to deal with them. 

Taking it for granted that Kentucky, Tennessee, and Mis- 
souri do not mean to suffer themselves to be dragged out of 
the Union by the machinations of a band of infamous conspi- 
rators, the question comes, will they pei-mit Louisiana and 
Mississippi to go out of the Union ? "Will they permit those 
States to assume the control of the lower Mississippi, to block 
our highway to the ocean ? ^ 

There are about eleven millions of whites in the great val- 
ley, all interested in the free navigation of the river. Of these, 
Louisiana and Mississippi contain only some seven hundred 
thousand. "Will the ten millions permit the seven hundred 
thousand to give the law to them on this gi'eat subject ? Our 
statesmen have always taught us that they will not. Reason 
tells us the same. Mr. Clay, speaking on the subject in 1850, 
said : " My life upon it, Sir, that vast population which has al- 
ready concentrated, and will continue to concentrate, upon the 
head-waters and the tributaries of the Mississippi, will never 
consent that the mouth of that river shall be held subject to 
the power of any foreign State whatever." 

Suppose Louisiana to fall into the possession of England or 
France, would not the people of the West compel the National 
Government to prosecute a ten year's war for its reconquest ; 
or without, and in despite the Government, would they not 
reconquer it themselves ? This Southern Confederacy, having 
signalized its advent by robbing and stealing, why should it 
be trusted with the mouth of the river sooner than any other 
foreign power? A Government, headed by a repudiator, 
i which, besides appropriating robbed property and stolen mo- 
ney, is guilty of the infamy of what, so far as regards the 
creditors, is equivalent to a confiscation of private debts, is 



DISUNION AND THE POLICY OF KENTUCKY. 153 

capable of selling Louisiana to France as the price of 
protection. 

The Confederacy is too feeble to prevent Louisiana from 
being forcibly seized by either France or England. As a 
commercial and military position, Louisiana has been always 
esteemed an indispensable national possession, inestimably 
valuable to the people of the great valley. In twenty years, 
those people will number near thirty millions, and their trade 
will be quadrupled. How preposterous the idea that they wdll 
ever permit the navigation of the river to be controlled by 
any Government but that under which they themselves live ? 
Hence Mr, Clay was perfectly correct when he said, that if the 
Union is ever broken up into different Confederacies, one of 
those Confederacies is bound to be, " The Mississij^pi Valley 
Confederacy." The seven millions of people in the free States 
of the valley are abundantly able, with their own unaided 
strength, to vindicate, with the sword, their right to the free 
navigation of the river. "Would Kentucky, Tennessee, or 
Missouri attempt to hinder them? On the contrary, our 
sympathies would all be with them, and we should be much 
more apt to aid them in so just an enterprise. 

It would be the excess of absurd folly for us to do anything, 
or countenance the doing of anything, which will allow the 
permanent secession of Louisiana. Having her now in lawful 
possession, and having, upon every principle of justice and 
national necessity, the indisputable right to hold on to our 
possession, it would be the extreme of stupidity to yield it up 
whilst knowing that we must regain it by military conquest, 
which every dictate of self-interest would compel us to do. 

The obvious policy of Kentucky, Tennessee, and Missouri 
toward Louisiana, is so to act, and advise the action of the 
Government, that she will be induced at an earl}- day to aban- 
don her attempt at permanent secession. To that end, no 
facilities should be afforded for her prospering under secession. 
Her people must feel its evils in full measure before they can 
be relied on to take power from the hands of those traitor 
leaders, who have led her into secession. 

"With these preliminary remarks wc can proceed to consider 
the doctrine of 
20 



154 DISUNION AND THE POLICY OF KENTUCKY. 



COERCION. 

Coercion by an invading army is what no intelligent person 
does or ever did contemplate. The evils would be infinite, 
with no compensating benefits from such a course. But there 
is a gentler coercion which it would be expedient to apply, 
and which, in a short time — less than a year — would prove 
adequate for restoring a majority of the people of the seceding 
States to their senses. That mode of coercion will soon be 
found to be a thing of necessity. If not adopted, the seced- 
ing States will coerce the nation. They will soon see that 
their true financial policy is to have a rate of duties very much 
lower than ours ; that they can collect more revenue with a 
duty of ten, than with one of twenty per cent. "With a duty of 
only ten per cent, they will do the importing of many articles 
for the whole nation. The facilities of smuggling upon such 
an extended frontier, would render the cost of prevention too 
great to be even seriously attempted. Thus the national 
treasury will be nearly dried up, the national credit destroyed, 
no power to borrow money left, and no adequate means for 
carrying on the Government. 

To prevent this, there will probably be an early call of Con- 
gress to obtain power to collect the duties on board ship, as 
was given in the days of President Jackson. The talk about 
acknowledging the independence of the seceding States, or 
making a treaty with them, is an idle talk. The Government 
has no power to do either. Such power can only come from 
an amendment of the Constitution, which there is no prob- 
ability of being made. 

But it will be said such a course will greatly incense the 
seceders, and so it will ; that they will attempt to drive off our 
blockading frigates, and so they would if they could; that 
they will declare war and invade our territory ; but this last 
they will have neither the folly nor temerity to attempt, or if 
they do, the only result will be a most disgraceful and salutary 
defeat. 

A single frigate off each of their principal ports will suf- 
ficiently accomplish the object. The cost of overland trans- 
portation from minor points on the coast will prevent any 



DISUNION AND THE POLICY OF KENTUCKY. 155 

system of extensive smuggling. That mode of smuggling 
■would also deprive them of nearly all revenue from duties. 
They have no power to relieve themselves from such a block- 
ade, nor can they create it. A frigate cannot be built in less 
than a year, and the Government could add to the blockading 
force much faster than they could build or buy. They would 
be fast bound by, to them, an unapproachable power. There 
would be no spilling of blood. They would have to vent their 
malice in impotent rage. The inability to relieve the blockade 
of a single frigate would fully expose the despicable impotency 
of their vaunted Confederacy. It would be brought into con- 
tempt even with their owii people, who, with that and other 
causes of dissatisfaction, together with the pressure of taxation, 
would soon clamor for restoration to the Union. They would 
refuse to pay double duties, and all the foreign goods received 
would be by smuggling, either on the seaboard, or overland 
from the Xorth. This source of revenue gone, the direct taxes 
must become enormous and cause revolt. 

The Border States remaining firm, the application of this 
gentle coercion would aiford the best, if not the only, chance 
for speedy restoration. Our business men must have patience 
until there is time for the remedy to operate. ISTeither the 
Federal or State Government has any power to alleviate the 
injury and distress which disunion traitors have recklessly 
brought upon us. Should this remedy prove too tardy for the 
Border Slave States, whenever they shall, with unanimity, de- 
mand a speedier and more efiicacious one, no doubt it may be 
found. If the attempted obstruction of the free navigation of 
the Mississippi is persisted in, no doubt the people of the great 
valley will find one for themselves. 

When Governor Magoffin said, " the mouth and the sources of 
the ^lississijipi River cannot he separated ivithout the horrors of 
civil tvar,'' he did but utter what has heretofore been the un- 
divided opinion of intelligent Kentuckians. K then, we are 
necessarily bound to have civil war on the right to navigate 
the Mississippi, — if we are driven to a mere choice between 
war with the seven hundred thousand people of Louisiana and 
Mississippi, or with the seven millions of people north of us, — 
Kentucky', Tennessee, and Missouri cannot hesitate in their 



156 DISUNION AND THE POLICY OF KENTUCKY. 

selection. Every dictate of prudence and justice will prompt 
us to side with the party battling against unjust usurpation, 
and who, whilst defending their rights, will be contending also 
for our own. Missouri and Kentucky will have every motive 
for desiring that the site of the civil war shall be removed as 
far as possible from their own borders. 

But there need be and will be no civil war, if Kentucky, 
Tennessee, and Missouri continue to manifest their firm 
adhesion to the Union, and show unanimity in their determi- 
nation not to submit to this insolent usurpation over their 
rights in the river. Whatever they shall say in denunciation 
of that usurpation, the people of Louisiana will at once recog- 
nize as the voice of the whole ten millions of whites inhabiting 
the upper parts of the great valley. They will also perceive 
that it would be sheer madness for them to attempt to main- 
tain their usurpation by force; that their only course is to 
retract and abandon all effort to control the river. This done, 
they will next inquire what secession is worth to them, how 
they can get along as a separate Government w^ithout the 
power to control the navigation of the river, and to tax its 
trade. These inquiries, aided by loss of trade, heavy taxation, 
and want of settled peace, will soon satisfy them of the folly 
of secession, and lead them to seek restoration. When Louis- 
iana returns, the so-called Confederacy must necessarily fall 
to pieces. Without her, there can be no permanent Southern 
Confederacy. Mississippi and Alabama would soon leave the 
rickety concern. This view presents the most probable, if not 
the only solution of our national difficulties. It is the only 
rational scheme of restoration, because it disregards the will 
of the political leaders in the seceding States, and can be 
accomplished in despite of all that they can do. It is also the 
speediest, because it requires only the joint action of Tennes- 
see, Missouri, and Kentucky, which can be obtained at the 
next meetings of their Legislatures. Public sentiment will pro- 
cure those meetings at an early day after the next legislative 
elections. 

Let us cease to waste our sympathies and forbearance upon 
that gathering of adventurers from all quarters who have not, 
and never had, any of the elements of national patriots ; but 



DISUNION AND THE POLICY OF KENTUCKY. 157 

wlio liaving obtained control of Louisiana, renounce us as fel- 
low-citizens, and repudiate all sympathy with us or our inte- 
rests. The few Kentuckians settled there, if they aid seces- 
sion, are doing what they know tends to the ruin of their native 
State. Let us rather devote our sympathies to our home-stay- 
ing brethren. Or, if our sympathies must follow those who 
have left us, let it be those who, true to their Kentucky in- 
stincts, are still loyal to the Union, and settled in Union-loving 
States. Let us direct our sympathies to glorious Tennessee, 
who led off in such noble style by such a triumphant majority 
of her people against disunion, and contains four times more 
Kentuckians than Louisiana ; or to Missouri, who made an 
equally triumphant protest against disunion, and contains 
twenty times as many Kentuckians as Louisiana. Why should 
our sympathies overlook our immediate neighbors across the 
Ohio, who have such an identity of interest with ourselves in 
the preservation of the Union, and whose prosperity is so in- 
dissolubly connected with our own. The census of 1850 shows 
that there were then nearly as many Kentuckians in Ohio as 
in all the seceding States ; in Illinois, more than three times as 
many ; and in Indiana, more than four times as many. Be- 
sides, if the Union should be irretrievably broken up, it is to 
those three States that Kentucky, Tennessee, and Missouri 
must look for their principal aid in constructing that new con- 
federacy, proclaimed and defined by nature herself, which will 
then be so indispensable to our permanent peace and prosperity. 

THE MISSISSIPPI VALLEY CONFEDERACY. 

In a speech delivered by the writer more than twenty years 
ago, he said : " Our great orator has misplaced the keystone 
of the Federal arch. Kentucky and Tennessee together con- 
stitute that keystone. Nature has bound them together in the 
bonds of an indissoluble union. Their destinies are one, and 
must forever remain so. The States south and west of them 
can fonn no alliance without them." Since then the giant 
growth of their daughter, Missouri, entitles her to a full share 
of the compliment, and it may be now more properly said that 
the three together constitute the true keystone. If they re- 
main firmly together, looking to their own great joint interests, 



158 DISUNION AND THE POLICY OF KENTUCKY. 

there can be no permanent severance of the Union ; certainly 
not upon a line running across the great valley. They have 
the most ample power to prevent such a measure. To Ten- 
nessee and Missouri, then, who have spoken so emphatically 
their adhesion to the Union, let us address all our surplus sym- 
pathy and solicitude. 

The interest of these three States require the closest atten- 
tion to this matter of the free navigation of the Mississippi. 
Its importance cannot be stated too highly. To any attempted 
encroachment upon their rights they should not give back an 
inch. Till very lately, it is believed, there was no difference 
of opinion on this subject among us. The writer was brought 
into consultation .upon it last fall with an eminent leader of 
the Democracy, in an abortive effort then made to induce party 
leaders to co-operate in obtaining a unanimous expression from 
Kentucky in favor of the Union, and against secession by 
Louisiana. After an interval of some two weeks between our 
interviews, he told the writer that he had conversed with a 
great many persons on the subject of the free navigation of 
the river ; that they were unanimous and earnest in the ex- 
pression of the opinion that for no consideration would Ken- 
tucky permit its control to be transferred or entrusted to any 
foreign State, or submit to any infringement of her rights. 
From this test of popular sentiment and intrinsic probabilities, 
he inferred that Kentucky would be found more perfectly 
unanimous on that subject than perhaps any other. 

It was a "fundamental condition" of the act of Congress 
admitting Louisiana into the Union, that she should never 
assume power over the navigation of the river ; yet the Con- 
gress of the so-called Confederacy has assumed, and is pre- 
tending to exercise the power by various vexatious regulations 
as to the navigation of the river, and by actually levying and 
exacting taxes or duties on our trade. They are using this 
usurped power for the double purpose of revenue, and as a 
means of coercion upon Kentucky, Tennessee, and Missouri, 
to compel them into secession. Their conduct is a throwing 
down of the gauntlet in armed defiance of the rights of the 
people of the upper valley, and of their power to maintain 
those rights. "What is the right of carrying slaves to New 



DISUNION AND THE POLICY OF KENTUCKY. 159 

Mexico worth in comparison to those rights? "U"^c are ex- 
pected to aid in breaking np the Union, to our own ruin, for 
the mere threat to deprive us of so trivial a right in New 
Mexico ; whilst we are tamely to submit to such insolent usur- 
pation over our so much more important rights on the river, 
and their actual deprivation. "We cannot be too submissive to 
the arrogant injustice of this nest of traitor States. 

Could it have been believed, even six months ago, that when 
such a usui-pation and outrage should be pressed upon the 
attention of the Legislature of Kentucky-', it would fail to as- 
sert our rights, and protest against their violation ? Would it 
have then been credible that thirty-seven of the Representa- 
tives of the people of Kentucky could be found so pliant to 
the dictation of a party leader, as not to permit a vote on such 
an assertion of our rights after it had passed the Senate? 
These secession sympathizers must be playing a desperate 
game when their purposes require a dodge from the perform- 
ance of such an imperative duty. Responsibility to the public 
sentiment of Kentuck}'- cannot be so dodged. The dodgers 
and their instigator must bear the penalty. 

This right to the free navigation of the river is too import- 
ant for the people of the "West to suffer it to be tampered with. 
They cannot and will not submit to a destruction of that right 
as a means of coercion against themselves. Accjuiescence in 
the wrong, is a sort of concession of the rightful power to 
commit the wrong. 



160 MARTIAL LA-W. 



CHAPTER XIII. 

MARTIAL LAW. 
Part of a pamphlet Jirst published in 1842, over the signature of a Kentuchlan. 

No. I. 

KoT tliat martial law ordained by Congress for the govern- 
ment of the army and navy, but that usurped power over pri- 
vate citizens, assumed by military men in derogation of civil 
authority. It is to this mode of martial law, and the extra- 
ordinar}' doctrines concerning it, recently avowed by eminent 
men, that I propose to invite the public attention. Those doc- 
trines as avowed by Mr. Adams, General Jackson, Mr. Bu- 
chanan, Mr. Berrien, and other Senators ; also, by a minority 
of the committee of the House of Representatives, and practi- 
cally acted on by the Rhode Island Legislature, it is my pur- 
pose to arraign at the great bar of public opinion, for national 
censure and condemnation. 

It must be matter of surprise to all whose regard for civil 
liberty is not merged in the ephemeral and comparatively un- 
important party strife of the day, that it should be left to an 
anonymous writer in a newspaper to make the effort to awaken 
public attention to the importance of those doctrines, and to 
fasten public censure upon them. If pei-petual vigilance be 
indeed the price of freedom, the modern appreciation of its 
value must be slight, when its sentinels are all asleep, none 
found to give the alarm when such doctrines are preached in 
the capitol and attempted to be enforced by a State Legisla- 
ture. The debate in the Senate, which elicited the avowal of 
some of the most obnoxious of them, called forth the expres- 
sion of abundant sympathy on the one side for the reputation 
of General Jackson, and on the other for the reputation of 
Judge Hall ; whilst but little interest was manifested from any 
quarter about a vital principle of Government involved in the 



MARTIAL LAW. 161 

discussion, of immeasurably more importance than the repu- 
tations, or even the lives, of a thousand General Jacksons and 
Judge Halls — that is, as to the right to proclaim martial law 
in this country. 

There has been no instance of martial law in England for 
the last hundred and fifty years, and none in this country since 
the Declaration of Independence, but that given by General 
Jackson at J^ew Orleans. "Washington carried the country 
successfully through the seven years' war of the Revolution, 
amidst spies and traitors, without finding a necessity, or feel- 
ing himself authorized, to resort to such means. Baltimore, 
an open, unfortified city, and every way very similarly circum- 
stanced to Kew Orleans, was successfully defended during the 
last war by the spontaneous eflorts of its citizens, who volun- 
tarily rendered more service in the way of personal exertion, 
than could have been extorted by any amount of coercion. 
This, too, amidst daily denunciations from the Federal press 
against the President for corruption, in getting the country 
into the war, and for imbecility in carrying it on ; denunciations 
that never ceased until the press itself stopped — that is, when 
the editors and their workmen, with the alacrity of all other 
citizens, shouldered their muskets to meet the enemy in the 
field. Indeed, the whole idea of extracting, by coercion from 
freemen, the most eflective resistance against foreign invasion 
is based upon a wrong conception of the genius of a republic. 
All history proves that the patriotism and public spirit of a 
republic are more eflective in calling forth, in the hour of need, 
the utmost energies of a State, than all the coercive powers of 
the most absolute despotism. 

5|: :)c * :(c :(! * * 

The first in order of time, as also in magnitude of error, in 
promulgating the new doctrine concerning martial law, was 
Mr. Adams. In a speech, delivered at the late session of Con- 
gress, he said : 

" When your country is actually in war, whether it be war 

of invasion or war of insurrection, Congress has power to carry 

on the war, and must earrj it on according to the laws of war; 

and, by the laws of war, an invaded country has all its laws 

21 



162 MARTIAL LAW. 

and municipal regulations swept by the board, and martial law 
takes tbe place of them. 

"This power in Congress has, perhaps, never been called 
into exercise under the present Constitution. But when the 
laws of war are in force, what, I ask, is one of those laws ? It 
is this : that when a country is invaded, and two hostile armies 
are met in martial array, the commanders of both armies have 
power to emancipate all the slaves in the invaded territory. 

"And here, I recur again to the example of General Jack- 
son. "What are you now about in Congress ? You are about 
passing a law to refund to General Jackson the amount of a 
certain fine imposed upon him by a judge under the laws of 
Louisiana. You are going to refund him the money with 
interest, and this you are going to do because the imposition 
of the fine was unjust. And why was it unjust? Because 
General Jackson was acting under the laws of war; and because 
the moment you place a military commander in a district that 
is the theatre of war, the laws of war apply to that district. 

" I might furnish a thousand proofs to show that the pre- 
tentions of gentlemen to the sanctity of their municipal insti- 
tutions, under a state of actual invasion and actual war, whether 
servile, civil, or foreign, is wholly unfounded, and that the laws 
of war do in all such cases take precedence. I lay this down 
as the law of nations. I say the military authority takes for 
the time the place of all municipal institutions and of slavery 
among the rest ; and that under that state of things, so far from 
its being true that the States where slavery exists have the 
exclusive management of the subject, not only the President 
of the United States, but the commander of the army, has 
power to order the universal emancipation of the slaves. I 
have given here more in detail a principle which I have asserted 
on this floor before now, and of which I have no more doubt 
than that you, sir, occupy that chair." 

N'ext in order of time in the preaching of this modern heresy, 
were opinions expressed in the Senate by various Senators, 
pending the question of the restitution of General Jackson's 
fine. My limits will not permit special notice of any but those 
of Mr. Buchanan and Mr. Berrien. They are selected as having 
participated most largely in the discussion ; as having taken 



M A R T I A L L AW. 163 

opposite sides on the question pending; as being of opposite 
party politics ; as being those who, from their intelligence, we 
had most right to expect better things, and as those who are 
probably best able to vindicate their errors. Mr. Buchanan 
said: 

" In my opinion, the General was comi^letely justified in re- 
taining Louallier, and in sending Judge Hall out of the city, 
to prevent him from issuing other writs of habeas corpus. 

" The Senator says Judge Hall was bound to administer the 
law, and on an appeal to him he was bound to issue his writ of 
habeas corpus. Kow, here the Senator and himself were at 
issue ; for he denied the premises even on the Senator's own 
showing. If General Jackson did no more than his duty in 
declaring martial law, the moment the declaration Avas made, 
the official functions of Judge Hall ceased, with regard to his power 
of issuing writs of habeas corpus, which might interfere with 
the defence of the city. As soon as martial laio ivas in force, 
every citizen of New Orleans, tvhether sustaining an official charac- 
ter or not, ivas bound to submit to it; and during its continuance 
Judge Hall was no more than any other citizen, and could have 
no more right to violate it than any other citizen. For it was 
quite a plain case, that if martial law did not supersede and 
put in abeyance the civil power, it would be wholly inefficient 
in attaining the only objects for which alone it could be toler- 
ated or justified." He also contended that it was exclusively 
in the discretion of General Jackson, and not with the civil 
authorities, to say when martial law should cease. 

Mr. Berrien said : " General Jackson was perfectly excusable, 
under all the circumstances of the case, in declaring martial 
law, and that he was equally excusable in disobeying the writ of 
habeas corpus. Under similar circumstances, he himself would 
have done exactly what General Jackson did, with respect to 
declaring martial law and refusing to obey the wi'it of habeas 
corpus ; but to avoid collision with the civil power, he would 
have sent the prisoner out of reach of civil authority, and he 
certainly never would have arrested Judge Hall for what he 
did." 

Shortly after the utterance of these and similar opinions, 
and no doubt influenced by them, the Legislature of Rhode 



164 MARTIAL LAW. 

Island was guilty of tlie egregious folly of passing an act 
attempting to authorize tlie Grovernor to proclaim martial law 
over that State, who also was silly enough to proclaim it, for 
the purpose of suppressing a contemptihle rebellion. 

I have not language to express the surprise, not to say hor- 
ror, with which I have witnessed the promulgation of these 
opinions. Theretofore, I had supposed that, in the estimation 
of all intelligent men in this country, martial law stood upon 
the precise same footing and none other, as lynch law, regu- 
lators' law, or mob law. For, in a legal or moral sense, they 
all have the precise same basis. They are equally the same 
arbitrary usurpation of power, without a particle of law or 
right to sustain either. ISTeither can, or at least ought, ever to 
receive the direct or indirect sanction of the law or any depart- 
ment of the Government, though considerations of policy may 
cause them occasionally to be overlooked. 

The doctrine is now, for the first time in this country, pro- 
mulgated by eminent men in civil stations, that martial law is 
some other and different as to right from the mob law ; that it 
is not a mere unlawful violence which it is the right and duty 
of every citizen to resist ; but is a law paramount to the Con- 
stitution itself, which, when proclaimed, every citizen and every 
civil functionary is bound to submit to and obey — a law which 
" sweeps the Constitution and all other civil law by the board," 
and leaves the property, liberty, and life of every citizen, at 
the will of a military despot. 

Extraordinary as this doctrine is, fit as it only is to be met 
and forever buried under a universal national execration, Mr. 
Adams warns us against meeting it with mere denunciation. 
He boastfully challenges its refutation by sober argument, and 
says he is ready to support it by a thousand instances from the 
laws of nations. Hard as the task may be, it shall be my 
endeavor so far to cool the blood, as to give him and Mr. 
Buchanan an answer in the way of sober argument first ; but 
with no promise to abstain from fitting denunciation aftei'ward. 

Let no man turn from my effort in this behalf, because this 
doctrine is sheer madness, and needs no answer. The public 
ravings of such men as these should never be slighted ; they 
should always be met and answered. 'We even now find Mr. 



MARTIAL LAW. 165 

Adams quoting tlie conduct and opinions of General Jackson 
as authority on constitutional law, wlien tliey happen to suit 
him, though he was wont to say, they were only fit to he quoted 
on military subjects, or on the qualities of a race-horse. In after 
times, other Generals and Senators will quote these opinions 
of Messrs. Adams, Buchanan, Berrien, and the conduct of the 
Rhode Island Legislature. 

As to Mr. Adams's other authorit}-, the laws of nations, it is 
difficult to understand what bearing they can have upon a ques- 
tion of lawful power within this Union. They may define the 
rights of the conqueror and the duties of the conquered ; but 
that is not what Mr. Adams means. He contemplates an un- 
successful or undetermined invasion merely, and says that " an 
invaded country has all its laws and municipal institutions 
swept by the board, and martial law takes the place of them," 
with an incidental power to both our own and the foreign com- 
mander to emancipate the slaves. Eminent as Mr. Adams is 
as an authority on the law of nations, yet his opinion must 
surely yield to that of the whole American people as expressed 
in their Declaration of Independence. This very mode of an- 
noyance towards an enemy, by inciting a servile insurrection, 
is there denounced as contrary to the law of nations and the 
usages of civilized warfare. It is ranked in atrocity with that 
other infamous practice of the English Government, the ally- 
ing itself with the scalping-knife and tomahawk. According 
to the better opinion, then, any invading foreign commander, 
who should issue such a proclamation as the one indicated by 
Mr. Adams, would thereb}^ cast himself and those under his 
command out of the pale of the protection of the usages of 
civilized warfare. Much rather, therefore, would any com- 
mander of ours be considered as absolving hmiself from the 
protection of all law, by such a course, and subjecting himself 
to be rightfully shot by any one who chose so to rid the coun- 
try of so infamous an incendiary. 

The American people have heretofore lived under the fond 
delusion that they had the exclusive privilege of making con- 
stitutions and laws for themselves, and that the combined will 
of all the nations of the earth could not rightfully add to or 
alter those laws in the smallest particular, so tar as they operate 



166 MARTIAL LAW. 

mthin our own territoiy. N"or do the laws of nations tliem- 
selves make any pretension to tlie power asserted by Mr. Adams 
in their behalf. There is no principle of international law 
better settled, probably none other about which there is less 
difference of opinion, than that the laws of one nation cannot 
operate within the territory of another ; and, by consequence, 
neither can the combined laws of two, three, or twenty na- 
tions, so operate within the territory of another nation. 

There is a class of politicians in this country who have long 
been suspected of having no great love or admiration of our 
republican institutions, viewing them as a useless experiment 
which must ultimately give away to monarchical government, 
and therefore as rather impatient for the advent of some bold, 
great man sufficiently powerful to do away with the idle trum- 
peiy of a constitution, and relieve us from the trouble of gov- 
erning ourselves. I must confess it has been heretofore sup- 
posed that Mr. Adams did not belong to this school of politi- 
cians. But it seems he goes a great way beyond them. They 
were merely suspected of sighing for a domestic usurper. He 
is for subjecting our Constitution and laws to the mercy of a 
foreign invader also. He not merel}'' concurs with Messrs. 
Buchanan, Berrien, and Jackson, in the right of a militaiy 
man to usurp authority over the Constitution, when he thinks 
it necessary, and to keep it up as long as he thinks it neces- 
sary, but for fear an American commander would never have 
the temerity or iniquity to attempt what he has in view, he 
claims that the power rightfully belongs to a foreign invader 
also, having in his eye, no doubt, an invader in particular that 
never scrupled about means however infamous, in the attain- 
ment of ends however iniquitous. 

If a foreio-n invader can strike dead in the hands of its 
owners four hundred millions' worth of property by his mere 
proclamation, though he be defeated and driven from our ter- 
ritory the next day, it is by a most precarious tenure indeed 
that we hold all which government was instituted to protect 
and guard. For Mr. Adams does by no means limit this power 
to a mere emancipation of slaves, but says it sweeps the whole 
Constitution by the board, and substitutes the invader's will 
in its place. He no doubt looks to that admired British Gov- 



MARTIAL LAW. 167 

ernment for tlie invading commander wlio is by proclamation 
to emancipate tlie three millions of his black fellow-citizens. 
But he should remember that, though it be now the pleasure 
of that immaculate Government to preach a crusade against 
negro slavery, she was formerly the patron and even attempted 
to be the monopolizer of the slave trade ; that she even forced 
the slaves upon this country in despite the remonstrance of 
our fathers, as she is now attempting to force her opium upon 
the Chinese ; that she may again change her views, drop her 
crusade against negro slavery, and preach a new crusade, as 
formerly, against the Protestant religion, or any other cherished 
right of ^ew England. Does that also lie at the mercy of her 
proclamations ? Can she thus put down that religion, and put 
up the Catholic, or any other, in its place ? 

But, says Mr. Adams, this is not a mere theory ; " his doc- 
trine has been carried into practical execution." He cites us 
to the example of those eminent man-slayers and expositors 
of the law of nations, and of the usages of civilized warfare, 
Generals Morillo and Bolivar. He says they both did the 
thing in Columbia, though he does not explain how ; after one 
had emancipated all the slaves, it was still left for the other 
to do. iTeither has he done his argument all the justice he 
might, in favor of the might of military power, from the ex- 
ample of the best of those two eminent expositors. He forgot 
to tell us that Bolivar, after having emancipated the blacks, 
by virtue of the same martial law, enslaved the whites, and 
placed a crown on his own head. "We of the South even, who 
are so much interested in the subject of slave property, would 
deem this a much more striking and convincing example of 
the extent of military power than that of the mere emancipa- 
tion of slaves. 

How differently from his forefathers of Massachussets does 
Mr. Adams consider the influence of foreign laws, and the 
overshadowing supremacy of military power. They say in 
their Constitution : " The people of this Commonwealth are 
not controllable by any other laws than those to which theu* 
constitutional representative body have given their consent." 
He says they are controllable by the arbitrary will of a mili- 
tary chief, foreign or domestic ; and that even their Constitu- 



168 MARTIAL LAW. 

tion is in subordination to the law of war and the law of na- 
tions. This Provincial Congress, writing to the Continental 
Congress, in May, 1775, on the necessity of their " taking up 
civil government," said : "As the sword in all free States 
should be subservient to the civil powers, and as it is the duty 
of the magistrate to support it for the people's necessary de- 
fence, we tremble at having an army^ although consisting of our 
own countrymen^ established here, without a civil power to provide 
for and control them." This being in time of actual war, a war 
of revolution too, what a silly set of old-fashioned fellows that 
Provincial Congress must have been to be thus sighing for a 
civil government to control the army, they not knowing in 
their simplicity that it was the undoubted prerogative, by the 
law of nations, for the military to control the civil power in 
time of war. Fighting as they were for their lives and liber- 
ties, in the midst of an actual war of revolution, they trembled 
at the idea of an army of even their own countrymen, because 
there was no adequate civil power to control it. So little of 
this fear of military sway is there in Mr. Adams, that he con- 
tends the military rightfully does and should overmaster and 
control the civil authority, in time of war, from invasion or 
insurrection. 

In case of a slave insurrection, if the United States are called 
upon to fulfil the constitutional guarantee against domestic 
violence, Mr. Adams says the President, or one of his sub- 
alterns, may, at his discretion, in order to put an end to the 
insurrection, emancipate all the slaves. That is, when the 
slaves are committing violence to obtain their freedom, the 
President, in discharge of his duty, to aid in putting down 
that violence, may, by proclamation, emancipate the slaves. 
The slaveholders call in the Government to aid in keeping the 
slaves in bondage, and he may perform this duty by setting 
them free. Mr. Adams does not at all confine this sovereign 
power in the President, or his subalterns, to the mere particular 
of emancipating the three millions of his black fellow-citizens, 
but allows the full force of the analogy, that necessarily ex- 
tends it to all other subjects of property, right, or constitu- 
tional guarantee. For instance, when Government interposed 
with its military power to suppress Shay's rebellion in Massa- 



MARTIAL LAW. 169 

cliusetts, or the whisky insuiTection in Penns^^lvania, or the 
recent suffrage insurrection in Rhode Ishmcl, the officer com- 
manding the military power woukl have had the right to sup- 
press the two first, by annulling the taxes which produced 
them, and the last, hy granting free suffrage to everyhod}-. 

Unable to find anything in the Constitution to authorize 
the Federal Government to interfere with the question of 
negro slavery, he is driven to a power de Jiors the Constitution, 
and conjures up this undefined and undefinable power of mar- 
tial law. He at once sees that it will not do to treat the war 
power as subordinate to and flowing from the civil function- 
aries of the Government, for it must necessarily be only com- 
mensurate with the powers of those functionaries. He therefore 
resorts to the desperate shift of claiming it to be a power para- 
mount to the whole Constitution. He boldly denies to the 
nation the right to declare, as it has done, that the Constitu- 
tion shall be the supreme law of the land; and asserts that 
martial law is paramount to all other law, not controllable by 
the will of the nation, or any form of constitution. A grosser 
absurdity surely never entered the mind of an intelligent man, 
educated under a government having a written constitution. 

Though I cannot admit that Mr. Adams is borne out, in 
these novel doctrines, by the law of nations, yet I must in can- 
dor concede that he is fully sustained by his other authority, 
General Jackson. Mr. Adams's theoretical doctrine requires 
no enlargement of the principles and powers under which the 
General acted and brought into practical use, in carrying out 
his martial law at JS'ew Orleans. K the fitness and necessity 
of the occasion for declaring martial law, and keeping it up, 
rest in the mere discretion of one of the President's subalterns, 
as according to Messrs. Buchanan and Berrien it does, if he can 
enforce it over the greater part of an entire State, why may 
not the President proclaim and enforce it over all the slave- 
holding States ? K, hy color of it, the subaltern can, as Gen- 
eral Jackson did drive, at the point of the bayonet, the repre- 
sentatives of the people of a sovereign State from their legis- 
lative halls, close the courts of justice, banish hundreds of 
meritorious and unoflending citizens, violate every constitu- 
tional guarantee in behalf of the freedom of the citizen, abol- 
22 



170 MARTIAL LAW. 

isli the freedom of the press, prosecute one for his life on a 
charge of treason for a mere exercise of its immunities, and 
seek to punish with death a private citizen, by a prosecution 
for libel before a court-martial, why may not the President, 
when called upon to suppress a servile war, vest himself with 
dictatorial authority over all the slaveholding States, by de- 
claring martial law, and then, by his mere proclamation, lib- 
erate all the slaves ? If the power rightfully exists in a military 
commander to do the one, surely much rather can he do the 
other also. We of the South do most cheerfully concede that 
if he can take from us our civil liberties he can take from us 
also our slaves. Mr. Adams, on the contrary, is so engrossed 
with his animosity to negro slavery, as to forget himself, and 
advocate slavish principles of government. He suffers him- 
self to be carried so far by zeal for his black fellow-citizens, 
as to advocate principles that would inevitably lead to the en- 
slaving of his white fellow-citizens. 

There is an American authority in favor of Mr. Adams, 
which he will do well to quote when he comes to furnish us 
with his thousand instances from the law of nations, for it is 
one he seems to hold in high respect on this subject. It is the 
declaration of General Jackson, in his letter to Mr. Monroe, 
that if he had been the commander of the military district in 
which the Hartford Convention sat, he would have hung its 
leaders under the second section of the rules and articles of 
war. Mr. Adams can add, in corroboration of this authority, 
that, while the nation was making mirth out of this declara- 
tion, as a something only fit to be laughed at, in which the 
General had said a great deal more than he seriously intended, 
the General liimself was wont to asseverate that he was in sober 
earnest, and that there was a great deal more in that second 
section than people thought. It will not be amiss, as his opin- 
ions are becoming such high authority, to recite that section, 
so that people may know all that is in it : "In time of war, all 
persons not citizens of, or owing allegiance to, the United 
States, who shall be found lurking as spies in and about the 
fortifications and encampments of the armies of the United 
States, or any of them, shall sufier death according to the laws 
and usages of nations, by sentence of general court-martial." 



M A II T I A L L A AV. 171 

This was no new idea witli the General, for it had full posses- 
sion of him when he was trying to have Mr. Louallier hung as a 
spy, for publicly calling in question the General's power to estab- 
lish martial law. As the General's construction of this famous 
section is not allowable by any of the canons of construction 
known to common sense or ordinary law, it of course must 
rest upon those that are recognized by Mr. Adams's laws of 
war, and he is, therefore, entitled to all the corroboration that 
the weight of the General's opinion can add to his own. 

What an admirable substitute is this newly-discovered power, 
for all those powers our fathers were silly enough to attempt 
to deny to the Federal Government, by express constitutional 
prohibition ; such, for instance, as the power to pass bills of 
attainder and ez post facto laws ; to abridge the freedom of 
speech or the press ; to hold men answerable for cajiital or in- 
famous crimes, without an indictment ; to deprive men of life, 
liberty, or property, without due process of law ; and in crim- 
inal prosecutions to deprive them of the benefit of an impartial 
jury of the vicinage. It is an old and familiar tyrant's trick, 
to pinch the subject till he squeak, and then punish him for 
squalling. No government ever lacked the wit to create a 
rebellion when one was wanted. "When once produced, where 
the need for bills of attainder or ex post facto laws, when the 
laws of war at once cast the lives and fortunes of the whole 
community into the hollow of the President's hand, or into 
that of any military minion he may send forth to deal out his 
own or party vengeance ? K nullification had not stopped short 
of actual rebellion, with Messrs. Adams and Buchanan to ex- 
pound the law, and General Jackson to execute it, how sum- 
mary might have been the expurgation process to the hot 
spirits of that day ! With or without the intervention of a 
drum-head court-martial, how eflfectual and satisfactory might 
have been the punishment of all those suspected of nullifica- 
tion, whether found in arms or not ! 

Forty years ago the political fortunes of the house of Brain- 
tree were wrecked in an effort to introduce necessity as a sub- 
stantive power of Congress, within the Constitution. May 
equal success attend the present eflTort of a younger scion of 
that house, to plant necessity in this country as a controlling 



172 MARTIAL LAW. 

power in the Presideut and his military subalterns above the 
Constitution. Oh, necessity, State necessity, that instrument 
of evil, would that its parent had, or that some kindlier in- 
fluence could, forever " damn it black," so that all the world 
might know it, for what it is, when used as a pretext for the 
usurpation or abuse of power. Know you not what it is, this 
thing called State necessity ? To go no farther back in his- 
tory, you may learn what it is in the proscriptions of the French 
revolution, in the conscriptions of the French empire and its 
wars for universal conquest ; in England's attack on Copenha- 
gen, in her piratical seizure of the Spanish galleons, and in 
her impressment of thousands of native Americans into her 
floating hells ; in our own alien and sedition laws, in all other 
usurpations and abuses of power by political parties, and finally 
you may learn what it is in the trial for his life of a respecta- 
ble private citizen, before a court-martial, on the charges of 
being a spy, and the publishing a libel. 

No.n. 

"What is it, this martial law ? It is simply the mere will and 
pleasure of the military man by whom it is proclaimed and 
enforced. The other rightful martial law is well defined by 
the Legislature in the rules and articles of war. This is de- 
fined nowhere, nor sanctioned anywhere, or in any way ; but, 
being the mere creature of him who proclaims it, is, of course, 
just what he chooses to make it. It is the mere unbridled will 
of a military despot. 

Hale and Blackstone tell us, "that it is built on no settled 
principles, but is entirely arbitrary in its decisions, and is, in 
truth, no law, but something indulged rather than allowed as 
law, a temporary excrescence bred out of the distemper of the 
State." 

Notwithstanding a clause in magna cJiarta, prohibiting the 
use of this law in time of peace, the kings of England habitu- 
ally employed it for various purposes of tyranny, until it was 
finally abolished, in time of peace, by the act termed the peti- 
tion of right, in the early part of the reign of Charles the 
First. But Hale and Blackstone seem to think it might still 
be employed in time of war. When, however, this intimation 



MARTIAL LAW. 173 

of theirs was cited, in 1792, before Lord Longliborough, he 
said that " martial law, such as described by Hale and Black- 
stone, does not exist in England at all, but, for a century, has 
been totally exploded, as contrary to the Constitution." "It 
is totally inaccurate to state martial law as having any place 
whatever within the realm of Britain." Shall it be with a 
blush of shame, or a feeling of indignation, that we find an 
English court and English lord better understanding and bet- 
ter appreciating the principles of civil liberty, than do some 
of our American Senators ? 

Some of the uses to which martial law was formerly applied 
in England, as detailed by the historian Hume, will serve not 
merely as authority to General Jackson for his mode of apply- 
ing it here, but may strengthen predilections for the lodgment 
of arbitrary power in single hands from the trustworthiness 
they evidence of all such depositories. So late as the reign of 
Philip and Mary, a proclamation declared that whoever was 
possessed of heretical books (that is, Protestant books,) and 
did not presently burn them, without reading them, or show- 
ing them to others, should be deemed a rebel, and executed 
immediately by martial law. This authority scarcely bears Gen- 
eral Jackson out ; for he never issued any proclamation, noti- 
fying his subjects at N'ew Orleans, that whoever questioned his 
authority should be deemed a sp}-, and immediately executed. 
But the uses to which it was applied in the reign of Elizabeth 
do fully bear him out ; " for, in cases of insurrection, it was 
not only exercised on military men, but on the people in gen- 
eral, and was extended to those who brought papal bulls, etc., 
from Rome : any person might be punished as a rebel or as an 
aider and abettor of rebellion, whom the provost marshal or 
lieutenant of a county pleased to suspect." This is a full au- 
thority for hanging, not merely Mr. Louallier, but the leaders 
in the Hartford Convention also. In the same reign there 
issued a commission to the provost marshal " to take all idle 
vagabonds, and riotous persons, and speedily execute them 
according to the justice of martial law." The historian also 
tells us how Sir Francis Bacon succeeded, by his wit, in rescuing 
from the fangs of that bloody vixen, Elizabeth, a literary man 
whom she wanted to proceed against capitally by martial law, 



17-4 MARTIAL LAW. 

because he had dedicated a book to the Earl of Essex, AAhilst 
the Earl labored under her displeasure. 

The mode of martial law, enforced at ^New Orleans by Gen- 
eral Jackson, and which is vindicated by Mr. Adams and Mr. 
Buchanan as rightful, and by Mr. Berrien as excusable, requires 
the exercise of two of the highest attributes of sovereign 
power, far above the power of ordinary legislation : the power 
to revoke or suspend existing constitutional law, and the power 
to substitute other law in its stead. 

Can such power be rightfully exercised in this country ? In 
other words, can there rightfully be in this countiy a usurpa- 
tion, and consequent tyranny, for any purpose or under any 
pretext ? Every usurpation is also a tyranny. The Greeks, 
who first taught the world a proper detestation of usurpation 
and tyranny, had but one word in their language to signify 
both. So, also, tyi*ant and usurper must forever remain as 
synonymous in the estimation, if not in the language, of every 
republican. An utter detestation of both is the great moral 
basis of every government, aspiring to the dignity and charac- 
ter of a government of law. 

Our institutions are framed upon the broad principle, that 
no rightful authority can exist in any department or function- 
ary of government, but by the assent of the governed. Other 
governments derive their powers from usage and implied 
assent. Not so with us. Ours are all derived from written 
constitutions and express assent. The necessary inference 
being, that any power not granted does not belong to, but is 
withheld from. Government. The master workmen, who 
framed the Constitution of the United States, relying upon 
the efficacy of this inference, adopted no bill of rights, because 
they thought it useless, and perhaps pernicious, as a mere 
omission might be construed into a permission, and because it 
would mar the compact and perfect symmetry of their work. 
The nation, however, not having quite so much concern for 
mere symmetry, and not quite so much faith in mere rules of 
construction, amended the Constitution after adoption, so as 
to give it a bill of rights ; but, to close the door against omis- 
sion being construed into permission, took care expressly to 
declare, that all powers, not delegated, were reserved to the 



MARTIAL LA W. 175 

States, or to the people. The intention was to grant all powers, 
deemed necessary for good government in any emergency, but, 
if inadequate, still none other was to be exercised ; for, upon a 
full survey of the whole subject, the nation greatly preferred 
all the evils that might ensue from the want of power, to in- 
curring the hazard of the abuse of such powers as were with- 
held. The great care, the great solicitude, was the preserva- 
tion of civil liberty, and the perpetuation of a republican form 
of government. To those, all other considerations were made 
subsidiary and subordinate. There were not wanting then, as 
now, croakers and false prophets, who told them that the Gov- 
ernment was too weak, that they were unnecessarily jealous 
and cautious in withholding essential powers. The answer 
was, it is strong enough for liberty, and that we mean to have 
for ourselves, and to secure for our posterity, at every hazard. 
The powers of a general are derived from his commission, 
which emanates from, and which he holds at, the will of his 
commander-in-chief, the President. All that he rightfully 
does, proceeds in fact, or it is supposed to proceed, from the 
order of that chief. If the subordinate can declare martial 
law, so much rather can the chief. If the one can rightfully 
close the halls of an independent State Legislature, so can the 
other the halls of Congress. If the one can refuse to obey 
the writ of habeas corpus of a district court, so can the other 
refuse to obey the mandate of the Supreme Court. If the one 
can substitute his will for law over the greater part of an en- 
tire State, so can the other over a whole Union. If the Presi- 
dent has any such power, it is to be found in the Constitution. 
The powers confided to him are all expressly stated and enu- 
merated. The auxiliary or necessarily implied powers, those 
necessary to carry into efifect the express powers, are all con- 
fi.ded to the discretion of Congress alone. He has no power, 
express or implied, to suspend law or make law. But why 
debate the existence of such power in any mere subordinate 
functionary, when it is so obvious that the unanimous vote of 
both houses of Congress can, in no emergency, rightfully es- 
tablish martial law over anj- State in this Union ? It is a gross 
mistake, as will be more precisely shown hereafter, to suppose 
that a mere suspension of the writ of habeas eo7'pus necessarily 



176 MARTIAL LAW. 

superinduces or permits tlie establishment of martial law. 
Congress liad as well attempt, by law, to condemn a citizen to 
be shot without trial, as to take the ^^eople of any one of the 
States from the protection of their own laws, and subject them 
to the arbitrary will of a military despot. The chief of the 
President's powers, under the Constitution, is to have the laws 
executed. He has no power to set aside or annul any law of 
Congress, much less a fundamental law of the Constitution, or 
to set aside the whole civil polity of a State and substitute a 
new code of his own. If the Constitution were now to be 
made anew, no man, except a monarchist, would vote to con- 
cede him such a discretionary power in any state of emergency 
whatever ; still less would it be conceded to any chance mili- 
tary officer, who might be placed in circumstances supposed to 
require the exercise of such a discretion. 

The power to suspend laws, and the execution of laws, was 
formerly one of the prerogatives of the crown in England, or 
at least it was habitually exercised as such, down to the revo- 
lution of 1688, when it was deemed so repugnant to every 
idea of liberty, that the nation determined it should forever 
cease. In the preamble to the celebrated declaration of rights, 
justly denominated the greater charter of English liberty, the 
exercise of this power is assigned as the first cause for de- 
throning James 11. ; and by the first article of the great cove- 
nant between King and people, then adopted, it is declared 
that no such power shall belong to the crown. 

Our State Constitutions, not being like that of the Union, a 
special delegation of a few enumerated j)owers, but general 
delegations, with special reservations and exceptions, neces- 
sarily required ver}^ guarded bills of rights. But this power 
is so obviously a legislative one, that any person might well 
have thought that there was no necessity for so declaring ; yet 
such was the jealousy and odium against the exercise of the 
power by any other than the legislative department, that we 
find it most sedulously guarded against in those Constitutions. 

So, also, as to that other still greater and more obnoxious 
power of substituting martial in the place of civil law, we not 
onlyfijid the Declaration of Independence setting forth as one 
of the causes for renouncing allegiance to the King of Eng- 



M A R T I A L L A W. ill 

land, " that lie lias affected to render tlie military independent 
of and superior to the civil power," but this very mode of sub- 
stituting another in the place of established law, is expressly 
and unqualifiedly prohibited by the State Constitutions. It is 
needless to cite the authority of individual names, against the 
allowance of martial law in any case, when we have the au- 
thority of our fathers,, speaking collectively and unanimously, 
by whole States, in its utter condemnation. It cannot be un- 
profitable or inappropriate in these degenerate days, whilst the 
first men in the nation are boldly advocating the doctrine of 
martial law, and nearly half the Senate shamelessly approving 
an outrageous instance of its exercise, to recur more minutely 
to what those men of the Revolution have thought and said on 
the subject. Listen, then, ye degenerate sons, to the warning 
voices and commands of your fathers, whilst I evoke the ver}'' 
embodiment of all their patriotic virtue and intelligence, and 
they speak to you by States, through their written Constitutions : 

3Iassachusetts. — The military power shall always be held in 
exact subordination to the civil authority, and be governed 
by it. 

New Hampshire. — In all cases, and at all times, the military 
ought to be under strict subordination to, and governed by the 
civil power. 

Neto York. — jSTo authority shall, on any pretence whatever, 
be exercised over the people of this State but such as shall be 
derived from and granted by them. 

Delaware. — The military shall, in all cases, and at all times, 
be in strict subordination to the civil power. 

Pennsylvania. — The military shall, in all cases, and at all 
times, be in strict subordination to the civil power. 

Maryland. — In all cases, and at all times, the military ought 
to be under strict subordination to, and control of the civil 
power. ]Sro person, except regular soldiers, mariners, and 
marines in the service of the State, or militia when in actual 
service, ought, in any case, to be subject to, or punishable by 
martial Uiw. 

Virginia. — In all cases, the military should be under strict 
subordination to, and governed by, the civil power. 
23 



178 MARTIAL LAW. 

North Carolina. — The military should be kept under strict 
subordination to, and governed by, the civil power. 

South Carolina. — The military shall be subordinate to the 
civil power. 

Vermont. — The military should be kept under strict subordi- 
nation to, and governed by, the civil power. ]^o person can, 
in any case, be subject to martial law, or to any pain or penal- 
ties by virtue of that law, except those employed in the army, 
and the militia in actual service. 

Kentucky. — The military shall, in all cases, and at all times, 
be in strict subordination to the civil power. 

Tennessee. — In all cases, the military shall be in strict subor- 
dination to the civil authority. No citizen, except such as are 
employed in the army, or militia in actual service, shall be 
subject to corporal punishment under martial law. 

OMo. — The military shall be kept under strict subordination 
to the civil power. 

The unambiguous import of the general tenor of the Fede- 
ral Constitution is to the same eifect. 

Such is the warning voice and command of our fathers. 
Let us beware how we fail to heed and obey. Kot content 
with saying that no man or body of men, other than the regu- 
larly constituted Legislature, shall have power to suspend law, 
they furthermore especially declare, that military men shall 
have no such power, that the law, martial in particular, shall 
never be substituted for civil law. These inhibitions against 
military usurpation, are all absolute and perfectly unqualified. 
ISTo exceptions are made for time of war, or supposable cases 
of great State necessity, such as might grow out of rebellion 
or invasion. Some of them, not content with positive prohi- 
bition without exception, have, with superabundant caution, 
gone so far as to say that, at all tiines and in all cases, the mili- 
tary shall be in strict subordination to the civil authority, or 
otherwise to speak, that, at no time and in no case, shall the 
military assume superiority. Fully cognizant of the tyrannous 
uses that had been made of that immemorial tyrants' plea, 
necessity, they intended to extirpate it utterly from our system, 
by declaring that, at no time, and in no case, should it be 
allowed as an excuse for military usurpation. They intended 



MARTIAL LAW. 179 

carefully to preclude all idea that, in any possible case of pre- 
sumable necessity, it would be allowable for the military to 
subvert tlie civil authority. They intended to repudiate and 
utterly reject that servile maxim of arbitrary Governments, 
salus popuU suprema lex, also that other inter arma silent leges ; 
and substitute in their stead that republican maxim alone, 
suited to constitutional freedom, Jiat justitia, mat coelum. The 
concurring import of all this language, of all these men of 
the Revolution is, that, at no time, for no purpose, under no pre- 
text, shall military supremacy ever have foothold in this land. 

Those stern republicans, who loved freedom with a holy 
devotion for its own sake ; who cherished it as the choicest 
good of human existence, as that inappreciable something 
without which life was not worth the having ; who were fully 
imbued with that Cassius-like spirit, which would as lieve 
tolerate the eternal devil as a usurper in Rome ; they who 
had won their own freedom with their blood, and whose 
greatest care was to transmit it unpolluted to their remotest 
posterity ; they, th e mighty founders of this great Republic, 
with full knowledge of all the temporary ills and inconveni- 
ences that might ensue, determined, whatever might be the 
result, to leave military men not an hour, not an occasion, for 
the lodgment of that usurping, overmastering power which 
has been the destruction of all other republics. They knew 
that to give it ever so slight a pretest for acting by its own 
authority, and upon its own mere discretion, in subversion of 
civil authority, would be, from the mere encroaching principle 
of all power crescit eundo, to allow it means by which, sooner 
or later, it would prostrate all those safe-guards which they 
were so sedulously rearing to secure to their posterity the en- 
joyment of that greatest earthly boon — a well-ordered civil 
liberty. As to the Constitution, the goodly fruit of all their 
toils and dangers, the matchless work of their unequaled 
wisdom, in which are garnered up the world's last hopes for 
civil liberty, in which freedom must forever live or know no 
life, as to its sanctity — its inviolability — its supremacy — 
they adopted as a maxim for uniform observance and unvary- 
ing application, fiat justitia, ruat coelum. 

Thus far, in our history, I am proud to say, the maxim has 



180 MARTIAL LAW. 

been inflexibly carried out by at least one department of the 
Government. Our courts, in numerous and unwavering de- 
cisions, have uniformly returned the same stern answer, to the 
officers of the army and navy, that no State necessity can, in 
the eye of the law, authorize or excuse a violation of individual 
private right, but that all reasons of excuse and all claims of 
indemnity must be addressed to the discretion of the other 
departments of the Government. Certain ancient dicta that 
countenanced the taking or destruction of private property, in 
cases of great State necessity, were rejected as unsuited to, 
and inadmissible in our system of Government. The same 
answer has uniformly been returned to the Legislature, that 
no necessity will authorize a violation of the Constitution, by 
the unanimous vote of even that highest department of the 
Government. 

For the sake of the military discipline of the soldiers of 
his country, a Eoman consul caused his own victorious son to 
be beheaded for fighting against orders. The three hundred 
Spartans threw away their lives at Thermopylae, upon the 
same principle. These, and such like examples rendered the 
discipline of their soldiers perfect, and their armies invincible. 
"War was the great business of those Republics, and the mili- 
tary discipline of their armies the most important interest of 
the State. Ours, on the contrary, is a pacific Republic, need- 
ing and seeking no aggr^indizement by foreign conquest, and 
shielded, by happy geographical position, from all danger of 
permanent foreign invasion. Our distinctive, most character- 
istic national feature is, that of ha\'lng emphatically a Govern- 
ment of law. For that alone can we excite either the envy or 
admiration of other nations ; for that alone can we justify the 
exulting pride or heart-devoted love with which we afi'ect to 
regard our country. The great national interest with us, the 
great point of discipline is, and must ever be, implicit and de- 
voted obedience to the law. Preserve the sanctity and invio- 
lability of the Constitution, and the great vessel of State will, 
without guidance, escape the " Scylla and Charybdis of anar- 
chy and despotism." Destroy that sanctity, suffer it by re- 
peated precedents to be set aside at the mere discretion of 
party majorities, military chiefs, lynch judges, or mobs, under 



MARTIAL LAW. 181 

tlie pretext of necessity, and no guidance can save us from 
one or the other of those perils. Let those who are sighing 
for the superior blessings of a stronger Government, who are 
dreading the supposed too strong democratic tendency of our 
institutions, and who would cling even to martial law, as a 
conservative principle against that tendency, take a more con- 
sidered view of the real character of this nation, and they will 
be satisfied the chance is at least equal, that monarchical insti- 
tutions will never be reared in this country but upon the 
wreck and ruins that a previous anarchy shall have left behind. 
Are they willing to pay that price? Why not rather, all 
beautiful and lovable as it is, endeavor to secure for the Con- 
stitution, by precept and example, that affection and obedience 
which are alone necessary to its perpetuity and the successful 
proof of its being the wisest and the best, as it is the freest 
Government ever known to the world. Anarchy is not to be 
avoided by the destruction of the principal of constitutional 
sanctity. There can be no means more certain to destroy that 
sanctity, than the allowing a discretion, in any single man, to 
trample the Constitution under foot. That ingrained feeling 
of equality, which will remain as long as there is the semb- 
lance of freedom left in the land, teaches each of us to believe 
that he has as much right to violate the Constitution as any 
other man. How much rather will a hundred or a thousand 
assume the right to a similar discretion, even though you call 
them a mob ; and with still greater propriety and aptitude will 
party majorities, in the State Legislature and in Congress, in- 
fer a discretionary right to violate the Constitution, for the 
sake of that greatest State necessity — party supremacy. 

We are told of two cases of the violation of law and private 
right by Washington, at the siege of Yorktown, as the two great- 
est, if not the only instances of usurpation of power by him dur- 
ing the whole of the Revolutionary war. They will serve as 
examples to elucidate the subject, verging as they do to the 
very utmost limit of what an officer may do, and stand morally 
excused, without being excused by the law. One was the dem- 
olition of a house that stood in the way of his approaches to 
the works of the enemy ; and the other, authorizing the 
seizure of some cattle, indispensable to the sustenance of his 



182 MAKTIAL LAW. 

army. Botli were, even strictly speaking, necessary violations 
of law and private right ; but no otherwise so, except in a 
moral sense, than if the same things had been done by a pri- 
vate individual. Legally speaking, the acts derived no validity 
from the facts of their having been done by a military com- 
mander under circumstances of the most urgent State neces- 
sity. He no doubt would voluntarily have made good the 
damage out of his own pocket, if redress could have been had 
in no other way ; but he could have been compelled to do so 
in a court of law. The circumstances attending the acts would 
have aided his defence no otherwise than to prevent the jury 
from giving what is termed smart money. If he had sold the 
cattle, or bartered them for other provisions, he would not have 
transferred the title, but the owner could still have recovered 
them from whomsoever he might have found in possession. 
If the owner had resisted and killed the officer making the 
seizure, it would have been justifiable homicide ; if the officer 
had killed him, it would have been murder. So, also, if Mr. 
Louallier had killed General Jackson, in defending himself 
against the illegal proceedings of the Greneral, it would have 
been justifiable homicide ; whereas, if he had been hung by 
sentence of the court-martial, as they had no lawful jurisdic- 
tion over him, it would, in a legal as well as moral sense, have 
been murder, and a foul one too, not only in the General, but 
in every member of the court-martial, for which nothing but 
their blood could have attoned. This law is well settled. In- 
deed, the court-martial so considered, in effect so decided, and 
refused to soil their hands with the work. They sustained a 
plea to their jurisdiction upon all the charges, except that of 
being a spy, and promptly acquitted him of that, both the 
charge and proof being alike ridiculous. There is, therefore 
no truth in the notion that the proclamation of a military 
commander can divest the owner of title to his slave ; or in 
the idea of Messrs. Adams and Buchanan, that the proclama- 
tion of martial law actually supersedes the civil law, and di- 
vests civil functionaries of their powers. On the contrary, in 
no shape, in no way, for no purpose, does or can the law sanc- 
tion these usurpations as legitimate ; and most certainly not, 



MAKTIAL LAW. 183 

when the usurpation is treasonable and the purpose a foul and 
wanton murder. 

Little did I ever expect to live to hear the doctrine of pas- 
sive obedience and non-resistance to a usurper preached in the 
halls of the American Congress ; that the usurped authority 
of a military commander could rightfully take from me all 
my civil rights as a freeman, and deny me even the right of 
remonstrance, that poor prerogative of the wretched under 
the penalty of death ; that it could revoke the power of my 
constitutional guardian, the judge, compel him, as a matter of 
duty, to become the aider and abettor of usurpation, and to 
perform the office of my hangman, if the usurper so wills. 

According to my remembrance, the only attempt at martial 
law, during the Revolution, was in the State of Virginia. At 
a gloomy period of the war, when the British army was de- 
vastating that State, certain members of its Legislature, con- 
sulting their fears more than their allegiance to the principles 
of liberty, had the folly to introduce and seriously urge a 
proposition to make Patrick Henry temporary dictator. We 
all recollect how that proposition was met. The proposal and 
the proposers were instantly silenced by a single sentence, 
calmly uttered by a true-hearted republican of the old stamp. 
That noble-minded Virginian, though a personal friend of 
Henry, as the only suitable answer to the proposal, contented 
himself with telling them : " The day you place your dicta- 
torial crown upon the brow of Patrick Henry, or any other 
man, that same day I'll plant my dagger in his heart." This 
brought them to a sober thinking, which soon satisfied all 
that no temporary advantage, to be gained by the accumula- 
tion of power in a single hand, however trustworthy, could 
compensate the evils of such an example in a republic. 

What would the men of that day have said to a dictatorship), 
not created by the Legislature, but by one man's own usur- 
pation. Twelve months ago, I should have been ashamed to 
think so meanly of any portion of my countrymen as to be- 
lieve that General Jackson could have enacted the things he 
did at New Orleans, in any one of the older States, where there 
was an unmixed native population, and have escaped with his 
life. But, since then, the conduct of the Rhode Island Legis- 



184 MARTIAL LAW. 

lature, with tlie tame acquiescence of tlie people of that State, 
and the damnable heresies preached in the halls of Congress, 
with the attendant public apathy, have raised a horrible doubt 
whether a large portion of the nation is not already in training 
for the yoke of a master. 

What would the men of the Revolution have said to these 
modern doctrines? What would they have thought of the 
vindication of everything General Jackson did, as justifiable 
by some, and as excusable by others ? ISTot merely a single 
violation, a single act of disobedience to the Constitution, 
under circumstances of imperative and controlling necessity, 
but a deliberate abolition of all Constitution and law, by for- 
mal proclamation with a substitution in their stead of the ar- 
bitrary will of a self-appointed dictator — a dictatorship estab- 
lished over some forty thousand people — a dictatorship en- 
forced by an actual putting down of the legislative and judicial 
authorities at the point of the bayonet — a dictatorship accom- 
panied with many of the types of all tyranny, and, among 
others, that ancient one, a prescribed curfew hour — a dictator- 
ship enforced for three long, weary months, and for most of 
that time in pretended apprehension of a defeated, disheart- 
ened, and disabled enemy — a dictatorship that was closed in 
an attempt to inflict an ignominious death upon a worthy and 
respectable citizen, chargeable with no fault or crime, none, 
literally none other than having the manhood publicly to call 
in question the legality of the dictatorship : and this, too, 
when the dictator had information, which he believed, that 
the treaty of peace had been actually ratified. What would 
the men of the Revolution have said to the vindication of such 
a dictatorship as this, as rightful in itself, and as one to which 
ever}'- good citizen was bound to submit and aid in enforcing ? 
The most temperate among them would have said that he 
should prefer to be the tenant of the forgotten grave of the 
humblest man, who by hand or voice ever aided the holy cause 
of freedom, rather than live to enjoy the proudest seat of the 
most talented Senator, and advocate such slavish principles. 
But those men of the Revolution, they are gone, all gone, 
leaving nothing of their spirit behind — none worthy to be 
called their posterity. 



MARTIAL LAW. 185 

If the moral sense of General Jackson, upon the pretext 
of mere military discipline, pointed out death as the just and 
appropriate punishment of Air. Louallier, for merely calling in 
question the legality of his assumed authority, did it never 
strike his defenders, as a strange casus-oyyiissus in our code, 
that it should be no crime, with no similarly appropriate pen- 
alty, to dispute the rightful commands of ten millions of free- 
men and subvert their Constitution with an armed force? 
Have he and they lived thus long under the delusion, that in 
the enforcement of his martial law, he was committing no 
crime known to and punishable by the laws of his country? 
Do they think that the framers of our Constitution, who ap- 
pear to have held this mode of usurpation by martial law, in 
such special abhorrence, have been so negligent as to make no 
provision for its punishment ? That would be a sad delusion, 
indeed, and a most severe imputation against the founders of 
our Government. 

There has been no such negligence — there is no such casus- 
omissus. The case is amply, is well provided for. It is treason. 
It comes completely and entirely within both the spirit and let- 
ter of the definition of treason, as given in the Constitution. 
If a military commander shall suppress the civil authority and 
enforce martial law by the power of the bayonet, he will owe 
it to the clemency of his country, and not to the want of law, 
if he does not meet a traitor's doom and felon's death. It is 
both literally and in effect levying war against the United States. 
He who levies war against the legally constituted authorities 
of this country is none the less a traitor because he may hap- 
pen to have a military commission from the Government, or 
because he is backed by an army of devoted American soldiers. 
Those facts do but serve to deepen the tincture of the guilt, 
because, like Macbeth, he is in " double trust." Let it not be 
said there is the absence of the criminal motive necessary to 
constitute treason. The motive being what it may, the act of 
putting down the lawful and rearing up an unlawful Govern- 
ment, is treason all the world over. The good of the country 
is the alleged and frequently the true motive for all such acts. 
No man can be allowed the discretion to pursue what he may 
suppose the public good, by a resort to such means. The use 
24 



186 MAKTIAL L AW. 

of tliose means, whatever the motive, must always be adjudged 
to constitute the crime. Try it as you will, sift the subject as 
you may, you can make nothing less of it. 'T is plain unmixed 
treason. 

Yet, General Jackson has the modesty to appear before the 
Government, not humbly seeking its mercy or forgiveness, but 
proudly demanding what he terms justice — that is, commenda- 
tion and full approval of all he did. lie says he does not want 
the money, and will not receive it back, but upon the condi- 
tion of exculpation to him and inculpation of the judge who 
inflicted the fine. The money should not be refunded upon 
any terms, but certainly never upon those he demands. That 
fine, in connection with his own most noble conduct pending 
its infliction, constitutes the only atonement for martial law. 
There may be room for honest difference of opinion, whether, 
in consideration of his great military services, the Government 
was right in receiving that atonement as adequate. But there 
is no room for difference of opinion as to the propriety of Con- 
gress, directly or indirectly, giving its sanction to the enforce- 
ment of martial law, loaded down as that mode of treason is, 
with all the odium the founders of the Government could heap 
upon it, and intrinsically dangerous as it is to liberty. The 
Government may rightfully remunerate an officer for a viola- 
tion of law in the destruction of private property under circum- 
stances of great State necessity, such as the instances furnished 
by Washington at the siege of Yorktown, but never when 
the violation is accompanied with the highest crime known to 
the law. The only crime which, under the pretext of State 
necessity, should ever receive even the moral sanction of a 
Republic, is that of assassination, when it is also tyrannicide. 
The ancient Republics commemorated the virtue and patriot- 
ism of the tyrannicide by statues erected in the temples of their 
gods. But with us, even that most plausible and allowable of 
all the pleas of necessity should not be countenanced by the 
law, or receive the direct sanction of the Government. Its 
absolution must be found in the affectionate gratitude of the 
nation, and its commemoration left to the immortalizing powers 
of the orator and the poet. The modern abuses of what may 
be termed the sacred prerogative of tyrannicide furnish ample 



MARTIAL L AW. 187 

warning as to the impolicy of encouraging the exercise of mere 
individual discretion, in the perpetration of crime and violation 
of law. The extravagant lengths to which such a man as Mr. 
Adams is already, by analogy, endeavoring to push a single un- 
sanctioned precedent of martial law, should afford abundant 
warning against that particular crime ever receiving the direct 
sanction of the Government. 

General Jackson tells us that his fine ought to be refunded, 
because if that precedent is not overruled, military command- 
ers will be deterred from declaring martial law, for fear of the 
punishment they may receive at the hands of a " vindictive 
judge." Does he not know that the pardoning power of the 
President, and the supervisory authority of superior courts, 
takes from a judge this power to be vindictive ? Does not his 
historical reading teach him, that the liberties of no country 
ever fell beneath the ermine of a vindictive judge ; but those 
of every people have been crushed beneath the batons of usurp- 
ing military commanders ? In a community of laws, we want 
no precedents to encourage the natural proneness of any class 
of men, and especially military men, to usurp more power than 
properly belongs to them. They need no spur to prick them 
on, save only the natural thirst for power, and their own 
" vaulting ambitions." "Wliat we want are precedents of their 
adequate punishment for delinquencies in this line. When a 
military man shall debate the question of martial law in his 
own mind, it shall not be in the fear of what he may suffer 
"at the hands of a vindictive judge;" but, of what he may 
suffer under the righteous verdict of a jury of his country at 
the hands of the hangman. We want it to be known and dis- 
tinctly understood by our military men, that when they under- 
take to enforce martial law, they undertake to commit high 
treason, and that they do it with the halter round their nocks. 

One word as to the report of the minority of the Committee 
of the House of Representatives, though, as to matter or man- 
ner, it is not worthy that word. It places the claim to restitu- 
tion on the importance of the General's services; and to en- 
hance the value of the victory at New Orleans, it insists that, 
if the city had been taken bythe enemy, England, acting upon 
her usual policy of might and not right, would have refused 



188 MARTIAL LAW. 

to surrender it, notwitlistanding tlie treaty of peace, and inti- 
mates tlie dastardly opinion, tliat this nation would liave been 
base enough to permit England to retain it. Has this nation 
ever sliOAvn itself unmindful or ungrateful for the military ser- 
vices of General Jackson? Were such services ever repaid 
with more heaping measure ? Did any man ever owe more to 
his countrymen ? But say that those services still remained to 
be requited, would that be sufficient reason for such an inno- 
vation on the principles of the Government, as directly to 
sanction the right of a military man, to enforce martial law in 
this country. "Wo worth the day," when the bold hunters 
of Kentucky and Tennessee gained for their commander that 
most brilliant chaplet of renown, ever won by the undisciplined 
valor of a free yeomanry ; " wo Avorth the day," that could be 
the occasion of engrafting such a principle upon our institu- 
tions. Better that those gallant hunters should have sustained 
a disastrous defeat ; better, far better, that the city should have 
been sacked and burnt. 

Once concede a discretion in any man or body of men to set 
aside the Constitution, though the forms of a republic may still 
for awhile remain, yet the all-essential, the life-giving principle 
of civil liberty, is gone forever. 

No. in. 

It has already been remarked that the suspension of the writ 
of habeas corpus by no means superinduces the establishment 
of martial law. The effect of a bare suspension of the privi- 
lege of that writ would not be to confer upon the Executive 
even the power of mere arrest; but when accompanied by the 
other appropriate legislation, it enables the Executive to take, 
and keep in custody, such as are suspected of inimical designs 
against the Government, but who have been guilty of no overt 
act rendering them directly liable to criminal prosecution. The 
measure is merely precautionary, and the means allowed are 
for prevention only, and not for punition. It enables the Exe- 
cutive, under the authorization of the Legislature, temporarily 
to restrain the freedom of a suspected citizen, so as to prevent 
him from aiding the rebellion or invasion, and to have him 



MARTIAL LAW. 189 

ready, at a proper occasion, to be surrendered to, and be dealt 
witli, by the judicial authorities, by due course of law, for any 
offence with Avhich he may be chargeable. The Constitution 
is express, and without qualification or other exception than 
that of " cases arising in the land or naval forces, or in the 
militia when in actual serAdce in time of war or public dan- 
ger" — that "no person shall be held to answer for a capital 
or otherwise infamous crime, unless, on a presentment or indict- 
ment of a grand jury, nor be deprived of life, liberty, or pro- 
perty, without due process of law." Lideed, the power of a 
commander to enforce the ordinary martial law over those 
actually engaged in military duty in the army or navy does not 
result from his commission, but comes, in England, from the 
annual mutiny bill, and in this country, from the rules and ar- 
ticles of war ordained by Congress, or similar enactments of 
the State Legislatures. 

Conceding the power to arrest and detain to be a mere min- 
isterial function, Congress may confer that power on the Ex- 
ecutive. But the power to try and punish a private citizen 
could not be conferred on the President, or any member of the 
Executive department; for that is a judicial function which, 
by the Constitution, can be conferred on the judiciary alone. 

The want of power in the Legislature of any one of the 
States having a formal, written Constitution to establish mar- 
tial law, is equally obvious. The Constitutions of Massachu- 
setts and New Hampshire alone seem to contemplate a dis- 
cretion in the Legislature to enforce military service other than 
that of bearing arms, by pecuniary mulcts, or such like penal- 
ties, through the instrumentality of a military court. An act 
declaring martial law, without defining what offences were to 
be embraced or what penalties attached, would be of no more 
validity than an act proclaiming the laws of nature. Both would, 
if for no other cause, be void for uncertainty. But such an act 
would be also void for direct repugnance to the Constitution 
of every State in the Union. As the charter of Rhode Island, 
heretofore used in lieu of a Constitution, has no bill of rights, 
it may be inferred by some that its Legislature has an arbi- 
trary discretion on this subject, and that its powers extend 
even to the appointment of a dictator, which, in substance, 



190 MARTIAL LAW. 

seems to have been the object of the late act, judging from the 
account given of it in the public papers. This, however, would 
be a great error. The powers of government granted by that 
charter are expressly declared to be in subordination to the 
laws of England, and, of course, to what is there deemed the 
fundamental or constitutional law of magna charta and the de- 
claration of rights, though the latter was adopted after the 
granting of the charter. The long unquestioned usage since 
the Declaration of Independence may imply an assent, on the 
part of the people of Rhode Island, to a legislative power within 
those limits which do not permit the creation of martial law. 
The omnipotent power of Parliament to annul or disregard 
any portion of the English bill of rights did not, at the Revo- 
lution, revert to the Legislature, but to the people of Rhode 
Island ; for, as the implied assent of the people to government 
is contrary to the first principles of liberty, as understood in 
this country, the powers of the Legislature, none other having 
been expressly granted by the people, must remain restricted, 
as they were anterior to the Revolution, except so far as the 
change of circumstances necessarily and unavoidably required 
an implied assent to the extension of those powers, or the re- 
moval of the restrictions upon them. This, it is presumable, 
is the mode in which the matter has been heretofore viewed 
and adjudged in that State. It is not fair to presume the peo- 
ple of that State would have so long endured an unrestrained 
power in the Legislature. A power must therefore be found 
in the charter itself for the Legislature to alienate all the 
powers of government to a single man, or, in other words, to 
create a dictatorship under the name of martial law, or none 
such can exist. 

K this view of the subject should, by any one, be deemed not 
correct or conclusive, there is another that is undoubtedly so. 
The Federal Constitution says the United States shall guarantee 
to each State a republican form of government. When the 
people of Rhode Island acceded to that Constitution, they made 
express declaration that their State Government then was, or 
gave express assent that it should forever thereafter be, a repub- 
lic within the meaning and contemplation of the Constitution. 
It is unnecessary to attempt the delicate and perhaps difficult 



MAKTIAL LAW. 191 

task of defining what is a republican form of Government 
•s^-itliin the meaning of the Constitution ; for there is no diffi- 
culty in the conclusion that the consolidation of all the powers 
of government into the hands of one man, however appointed, 
is not a republican form of government within that meaning. 
'Nor could the people of any State, by any mode, adopt or cre- 
ate a government which vested absolute arbitrary power in a 
single man. Much less, therefore, can it be contended that 
the Legislature has the power to create such a form of govern- 
ment without the express sanction of the people. 

Or, in other words, if it can be shown, by any process of 
reasoning, that the Legislature of Rhode Island does possess 
the discretion and power, to create a military dictatorship over 
that State, then the casus foederis has arisen, which requires the 
interposition of the United States, under the constitutional 
guarantee of a republican form of government, to the people 
of every State. Whatever diflerence of opinion may have 
existed as to the propriety of the Government interposing, 
pending the recent rebellion, there would or should be no such 
difference of opinion, as to the propriety of interposition, for 
the purpose of relieving the people of that State from a dic- 
tatorship. The enforcing, or the attempt to enforce, such a 
form of government upon the people of that State, by an armed 
force, would most undoubtedly be treason in the actors, and all 
aiders and abettors of such a project. 



APPENDIX TO CHAPTER XIII. 

(Published June, 1861.) 

Silent leges inter arma — is not — never was a legal maxim. Such a maxim 
would be incongruous in any civil code. It is not — never was — never can 
be a recognized principle in the code of any government pretending to have 
civil liberty for its basis. Under every such government, the law necessarily 
claims for itself absolute supremacy at all times, and under all circumstances. 
Otherwise it could not be a government of law. Whenever public safety may 
require the temporary deprivation of freemen's right to exemption from arbi- 
trary arrest, it confides the discretion to judge the necessity, and the power to 



192 MARTIAL LAW. 

make the suspension, alone to its highest department — its legislative depart- 
ment. The act of suspension, and the power exercised during the suspension, 
are all parts of the law itself. 

Our written constitutions have even taken the superabundant caution to pro- 
claim that they are "the supreme law of the land."* They recognize no 
equal — still less a superseding superior. They spurn all pretended laws of 
necessity as their equals or superseders. They expressly condemn and de- 
nounce all laws of war or arms, except such as are created by the Legislature, 
under constitutional restraint. Without this perpetual supremacy of law a7id 
constitution, there can he no civil liberty. 

It is, perhaps, not possible to trace the origin of the phrase, silent leges inter 
arma. The eloquent Mr. Storrs, of New York, said in Congress some forty 
years ago, that it " first fell from the dastard lips of the coward Cicero whilst 
playing sycophant to the dictator Caesar." Enlightened jurists and statesmen 
have always classed it with the Jesuit maxim : " the end justifies the means ; " 
the one being not less repugnant to freedom than the other to sound morals. 
They have classed it with solus populi suprema lex, that immemorial pretext 
for military usurpation and tyranny. They have also classed it with the 
slavish precept of "passive obedience and non-resistance to the divine right 
of kings," — the phrase inculcating, as it does, passive obedience and non-re- 
sistance to the devil-derived right of usurpation. The founders of our Gov- 
ernment taught that public safety can always be preserved, though government 
officials be restrained within the limits of the Constitution ; or if not so to be 
preserved, it will be because of the corruption of the people, who will have 
ceased to be worthy of the name of freemen. It will be full soon enough to 
disregard this teaching when its perfect wisdom shall be disproved by repeated 
experiments. Thus far our national experience, as also that of England, has 
been all in its favor. They taught that the utmost possible temporary mis- 
chief which might ensue from the want of power to proclaim martial law, 
could not equal the permanent mischief that would ensue from recognizing 
a discretion in military commanders or Presidents, to usurp power in disregard 
of the Constitution, under any pretext whatever. 

* By the common law a descent cast, in time of war, was not allowed to bar a right of 
entry. The following quotation from Lord Coke, commenting on that rule, will show how 
far the phrase silent leges inter arma has been adopted into our law, and explains the mean- 
ing of "time of war," in our books. 

" When the Courts of Justice be open and the judges and ministers of the same may, by 
law, protect men from wrong and violence and distribute justice to all, it is said to be ttvie 
of pence. So, when by invasion, insurrection, rebellion, or such like, the peaceable course 
of justice is disturbed and stopped, so as the courts of justice be, as it were, shut up, et silent 
leges inter arma, then it is said to be time of war. The trial hereof is by the records and 
the judges, for by them it will appear whether justice had her equal course of proceeding 
at that time or no, and this shall not be tried by jury." 

It merely afforded an excuse to a party for apparent negligence, which otherwise would 
have barred his right. Time of rear gave no recognized pretence for the enlargement of 
the powers of officers of Government, except such as that day resulted from the then sup- 
posed prerogative of the crown, to which we have no counterpart in this country. 



MARTIAL LA AV. 



193 



It would be incredible, if we had not the proof before our eyes in the public 
press, of the amount of j^ross ignorance prevalent in the nation upon this im- 
portant subject, causing the utterance of the wildest vagaries as to the powers 
of the President and his military subordinates, calculated to lead even well- 
intentioned, loyal officers into serious difficulties, perhaps into great criminal 
offences. Unable to meet the recent very lucid and convincing argument of 
Judge Taney, a respectable editor attempts to get rid of it by saying it has 
no application to the present state of things, because it is based upon the Con- 
stitution, which he insists is a mere fair weather Constitution, not intended to 
operate in the the stormy times of war or rebellion. This, too, in the face 
of the very words of the Constitution, which expressly provides the necessary 
power for carrying on war and suppressing rebellion. The very reverse of this 
idea is the truth. With much more propriety should it be said that constitu- 
tional restraints upon power and the bill of rights were not made for the calm 
sunshine of peace and public quiet, when there is little temptation to encroach 
upon private right of freedom, but for those tempestuous periods of war and 
rebellion, when the vindictive passions of men lead them to persecution. 

AVe are told that a respectable law lecturer at the North instructs his class, 
that martial law is aa indispensably necessary power to every Government, as 
much as the power of carrying on war in self-defence. There never was an 
assumption less sustained by fact or reason. As the long war for our inde- 
pendence was successfully carried through in the midst of numerous traitors 
and tories without a resort to martial law, and as Jackson was the only com- 
mander who fancied a necessity for it during the three years' war of 1812, 
nothing can be more absurd than the assumption of any such necessity. An- 
other all-sufficient disproof of the fact is, that during the various conspiracies 
and rebellions in England during the last century and a half, though the 
habeas corpus was frequently suspended, yet martial law has never been 
resorted to as a means or an aid towards their suppression. Indeed, as decided 
by Lord Loughborough, it has been uniformly held to be totally incompatible 
with the genius of the English Constitution. If, with such a crowded popu- 
lation as they have in England, often starving and rebellious, there is no 
necessity for martial law, how perfectly preposterous to contend for it as a 
thing of absolute necessity in this country. 

The lecturer says martial law is " wholly arbitrary," and adopts the defini- 
tion of it given by the Duke of Wellington, "the will of the commander-in- 
chief." Yet it is contended that such an infamously slavish principle as this, 
suited only to a nation of slaves, is lurking unexpressed in our free institutions 
as an indispensable incidental power of all governments. Can it be that the 
superintending authorities knowingly permit the inculcation of such abomin- 
able doctrine in our principal law school, and that the lecturer himself does 
not perceive that he is training its pupils to become the willing slaves of a 
military usurper. 

The suspension of the writ of habeas corpus in England gives the power of 
temporary arbitrary arrest, because the crown has at all times the power of 
arrest. Not so as to the President or a Governor in this country, who have, 
25 



194 MARTIAL LAW, 

cx-qfficio, no such power, and Judge Taney even doubts whether such power 
could be conferred upon them by the Legislature. Without expressing any 
opinion upon this doubt, it is perfectly clear to my mind, as it must be to 
every lawyer, that as he decides no power can be conferred by a Congress or 
a Legislature upon the President or a Governor, or a court-martial to try and 
punish even a prescribed defined ofi'ence on the part of a free citizen not 
engaged in military service. The Constitution is perfectly impregnable upon 
this subject, and being so, can there be grosser folly than to suppose that a 
President may rightfully usurp power to arrest, try, and punish by his arbi- 
trary will ? 

It is high time our officers should be informed, that so far from a President 
having power to make or authorize the arbitrary arrest of a free citizen, if he 
were to attempt to make or aid in making such an arrest, the citizen would 
have a right to kill the President in self-defence, and would be acquitted as 
for justifiable homicide by any intelligent court and jury. Whereas, if the 
citizen were killed in making resistance, the President and his aiders would, 
in the eye of the law, be guilty of wilful murder, and condemned to the gal- 
lows if the law was faithfully administered. 

The profession and the country owe Chief Justice Taney so much for his 
recent orthodox, lucid, and most convincing opinion in the habeas corpus case, 
that it is painful to hold him up for censure as a promoter of the loose opinions 
now afloat in this country. He delivered the opinion of the Supreme Court 
in Luther vs. Bordlen, 7 HoAvard, which sanctioned the power of the Legisla- 
ture to establish martial law over Rhode Island, It is true the Court distin- 
guish the case from that of an act of Congress, or the statutes of any other 
State, by reason of the fact that the people of Rhode Island were living with- 
out the protection of a written Constitution or Bill of Rights. Still the Court 
seems to recognize martial law as a sort of necessary governmental instru- 
mentality, to which an untrammeled Legislature might resort even in this 
Union, though the Constitution guarantees to each State a republican form of 
government. It is not the purpose to go into a seriatim argument to prove 
how repugnant is the possession and exercise of such power to all our Ameri- 
can ideas of a republican government. The foregoing pamphlet was written 
shortly after the passage of the act in question. The author's opinion as to 
its validity, and the reasons for that opinion, will there be found. Such as 
they are, he can well afibrd to submit them to the profession for a candid com- 
parison with those of the Court. He will here merely subjoin a few remarks 
to fortify one of the main points relied on by him, and upon a decision of 
•which the Court might have escaped its pernicious blunder as to martial law, 
if, unfortunately, the point had not escaped the attention of the whole Court, 
the dissenting Judge included. 

The statute is a very brief one, in these words : " The State of Rhode Island 
and Providence Plantations is hereby placed under martial law, and the same 
is declared to be in full force, until otherwise ordered by the General Assem- 
bly, or suspended by proclamation of his Excellency, the Governor of the 
State." June 25, 1842, The statute does not say what shall be an offence 



MARTIAL L A AV. 195 

under it, wlio shall arrest the oiFeuder, who shall try or who shall punish him, 
nor what shall be his punishment. The point overlooked by the Court is, that 
the statute was void for iincertainiij. 

The only clue given to the legislative intent is to bo found in the true sig- 
nification of the phrase martial laic, whatever that may be. The law authori- 
ties all tell us that it is not merely undefined, but it is undefinable. No man 
knows what it means. The Legislature had as well have expressed itself in 
an unknown language, or some unintelligible jargon. Even the adventurous 
lecturer who so gallantly advocates it, substantially admits that, after all his 
research, he has been unable to find out what it is. The nearest approxima- 
tion to a definition that he has been able to find, or invent, is this: "The will 
of the Cominander-ia-chief." But far be it from me to make the degrading 
imputation against the Court, that such was its sense of the meaning. No 
man filling such an exalted station could be so reckless of civil liberty as to 
concede a power to place the lives, the fortunes, and the liberty of the people 
of an entire State of this Union, at the capricious will of a military chief. 
The venerable judges must have trusted to the fact of the statute having been 
adjudged valid by the State Courts, that the phrase must have a known, set- 
tled signification in Rhode Island, though they themselves could not find it 
out, and acquiesced from that comity and deference which they habitually 
extend to State construction of State statutes. Could they have forgotten the 
indignant rebuke given by Burke on the trial of Warren Hastings, to the sug- 
gestion oi arbitrary power, even in a Governor-general of India? — 

" He have arbitrary power ! ! my lords, the India Company have not arbitrary 
power to give him ; the king has no arbitrary power to give him ; your lord- 
ships have not ; nor the Commons ; nor the whole Legislature. We have no 
arbitrary power to give, because arbitrary power is a thing which no man' 
can hold, nor any man can give. If, then, all dominion of man over man is 
the result of Divine disposition, it is bound by the eternal laws of Him who 
gave it, with which no human authority can dispense ; neither he who exer- 
cises it, nor even those who are subject to it; and if they were mad enough 
to make an express compact that should release their magistrate from his duty, 
and should declare their lives, their liberties, and their property dependent 
upon, not rules and laws, but his mere capricious will, that covenant would 
be void." According to Burke, all the people of the State, in convention, 
could not have granted an arbitrary power, such as the Court concedes a right 
in the Legislature to create, without any specific authority, express or implied, 
from the people. It is rather a melancholy and mortifying reflection, that an 
English statesman should, even at that early day, have had a so much higher 
appreciation of human freedom, than do now some of our most enlightened 
American jurists. 

It is a familiar legal principle, "that if a statute is so ambiguous, or con- 
fused, that the courts cannot with certainty discover the meaning," they will 
pronounce it void, because of the uncertainty. With all deference, such 
should have been the decision of the Court upon this statute. The Legislature 



19G MARTIAL LAW. 

must speak in intelligible language, or it ought not to expect obedience to its 
command. 

We were fully forewarned by our older statesmen, that disunion or secession 
would necessarily be attended by a prolonged civil war. Their sagacity hav- 
ing been so far verified, we should carefully heed the balance of their warning. 
They warned us that the result of such a war would be the establishment of 
one or more military despotisms over the nation. Everything now going on 
is facilitating and hastening that result. Habitual disregard of law and Con- 
stitution brings them into contempt, destroys all reverence and affection for 
the Government, and thoroughly demoralizes the whole moral tone of the na- 
tional mind. The outrages of one party become the ample justification of 
the other. Every citizen knows he has as much right to violate the Constitu- 
tion as a President, and thousands of citizens, acting together as a civil or 
military mob, will think they have a far better right to trample on the Con- 
stitution. When a President willfully disobeys the sanctified writ of liaheas 
corp2is, issued by the Chief Justice, he, by his example, encourages all man- 
ner of disregard to law and Constitution. He inaugurates anarchy. He 
uses the influence of his high position to inaugurate, throughout the nation, 
mob-law, lynch-law, and vigilance-committee-law. These have proved every- 
where, the precursors of military despotism. 

No one would seriously impute to the present jocose, amiable incumbent of 
the Presidential chair, the deliberate purpose of establishing a military des- 
potism, on the ruins of our free institutions, either for his own benefit or that 
of his party. But if such be, as they clearly are, the probable effects of his 
acts, he should be checked and controlled without regard to his motives or 
intentions. He should be impeached for his disobedience to the writ of habeas 
corpus. He should be impeached for wilful disobedience to the command of 
this great nation of freemen, legally issued through its authorized functionary, 
the Chief Justice. His impeachment and amotion from office would be worth 
more to the sacred cause of liberty, would be worth more to the permanency 
of free institutions in this nation, than even the speedy suppression of the 
present great rebellion. 

The reiterated outrages of the seceded traitor States, upon all obligations 
of patriotism, duty and honesty, together with their encouragement of the 
most infamous treachery in traitor officials, affords already, with the incon- 
siderate millions, ample justification for Presidential usurpation of any de- 
gree of power he may choose to think necessary toward suppressing the re- 
bellion. The unparalleled infamy of the members of the Virginia Convention 
and the Tennessee Legislature, in their base betrayal of popular trust, aggra- 
vated this sentiment. , The considerate few, they especially who, as members 
of Congress, the people have appointed the sworn guardians of the Constitu- 
tion, should think and act quite differently. They should teach the nation 
that the preservation of the Union is principally desirable for the sake of the 
Constitution, which is itself to be valued and cherished principally because 
it is the consecrated guardian of the inestimable principles of civil liberty. 
They should teach that treason to those principles is more than treason to 



MARTIAL LA AT. 197 

country ; that the destruction of the Constitution is too costly a price to pay 
even for the preservation of the Union ; that when the nation becomes so de- 
moralized as not to properly appreciate the sanctity of the Constitution, the 
Union will no longer be worth preserving, for the nation will already be pre- 
pared for the rule of a master. But nothing of the sort will be done. The 
halls of Congress, filled as they are with intense partisans, are the last place 
where we should look for independent patriotism, especially at a time when 
all society seems guided by the principle, that " thrift follows fawning." 
Still we should not be without hope, that some dozen or twenty manly, inde- 
pendent, members of the House of Representatives may be found who will, 
by a vote of impeachment, make a solemn protest against Presidential usur- 
pation, so that it shall not wear the aspect, and be quoted hereafter, as an 
unchallenged precedent. 

Public sentiment, however unwisely, will no doubt sanction the ratification 
by Congress of most of the many recent Presidential usurpations under the 
plea of necessity ; but the arbitray arrest and deportation of private citizens, 
with contemptuous disobedience to the writ of habeas corpus, should not be 
of the number. It has been well said of the President's conduct in this par- 
ticular, that it was folly, which Talleyrand would have pronounced " worse 
than a crime." The wanton murder of the Duke D'Enghien only served to 
fix an indelible stain on the character of the tyrant Bonaparte ; and this con- 
duct, without the apology, as it is, of even supposable national necessity or 
national benefit, can only serve to bring odium and disgrace on the Govern- 
ment. 

If properly considered, there has been, most probably, no actual necessity 
for any part of the usurpations of President Lincoln. Congress could have 
been assembled more than a month ago — by the first of June, at least — and 
all the requisite power for suppressing the rebellion have been legally ob- 
tained. In the meantime the law furnished him ample power and means to 
protect the Capital and the few remaining forts. That, no doubt, was his 
principle, if not sole object, at the time he issued his first proclamation ; and 
if he had, with manly frankness, so stated, we should not have lost a single 
Union vote. Volunteers from Maryland, Kentucky, Tennessee, and Missouri 
would have rapidly flocked to him in such numbers as to protect the Capital, 
without aid from the free States. The enthusiasm and unanimity with which 
the proclamation was greeted from the North, caused the after-thought of pre- 
cipitately crushing out the rebellion. Whether that after-thought was a wise 
one, there is a great room for difierence of opinion. Some of our wisest 
think, that so far from being the speediest mode of putting down the rebellion 
and restoring the Union, it will prove about the tardiest that could have been 
devised. But, wise or unwise, it was a policy of such transcendent impor- 
tance, that Congress ought to have had an opportunity to decide upon it, there 
being neither want of time nor any actual necessity for precluding its decision 
by rash anticipatory Executive action. There is nothing apparently left for 
Congress, and Union-loving men throughout the nation, who will not abandon 
their Government and be thrust into the arms of a causeless, traitor rebellion 



198 MARTIAL LAW. 

for the blunder of an Administration, but to acquiesce, trusting to Provi- 
dential deliverance from blundering on the one hand, and treason on the other. 
Should national ruin be the result, let us all protest in advance against State 
necessity being made the scape-goat for the blunder. It ■will be soon found in 
the progress of the long war before us, that the gain of only a few weeks in 
commencing the attempt at suppression by invading coercion, is so trivial a 
something as not really to excuse, much less justify, enormous infractions of 
the Constitution. If there be an exception, it is the blockade of the Southern 
ports, which was so far a matter of actual, immediate necessity, as to induce 
every patriot to view the act with the utmost leniency. 

Every good citizen should aid in the expurgation of the dogma, State ne- 
cessity, from our system of Government, as a justification for usurpation or 
abuse of power. The dogma is, as it always has been, always will be, an aid 
to military despotism. It can have no safe lodgment — it can never do good 
in a republic. 

Perpetual vigilance being the price of liberty, we should heed the precept at 
the present, above all other times. There never can be an occasion which can 
more require the marking and protesting against usurpation. To suppose 
a want of sound, gainful policy in so doing, is to cast a calumnious imputa- 
tion upon the loyalty and intelligence of the Union men of the nation. It is 
imputing that, for mere temporary, well-intentioned acts of the President, 
they might be induced to countenance treason, and aid in destroying their 
country. True Union patriots will adopt the policy with a just, a manly 
confidence in their fellow-freemen. With all deference it is suggested, that 
there can be no more damaging policy to the Union cause, than for its leaders 
voluntarily to incur the imputation of recklessly justifying everything the 
President has done, or may choose to do. Such servility can never win the 
confidence of this nation. 



It is due to the memory of Senator Berrien to state, that in a speech de- 
livered in 1843, he said that his speech of the previous year, from which the 
foregoing pamphlet quoted, was grossly misreported. 



THE LAW OF "WAR. 199 



CHAPTER XIV. 

In^o. I. 

THE LAW OF WAR. 
February, 1852. 

"When your country is actually in war, whether it be a war of invasion 
or a war of insurrection. Congress has power to carry on the war, and must 
carry it on according to the laws of war ; and by the laws of war an invaded 
country has all its laws and municipal regulations swept by the board, and 
martial law takes the place of them. * * * When a country is invaded, and 
two hostile armies are met in martial array, the commanders of both armies 
have power to emancipate all the slaves in the invaded territory." — Speech 
of J. Q. Adams in 1842. 

Shortly after the delivery of tliis speech the present writer 
publicly denounced its " extraordinary doctrine as fit only to 
be met and buried under an universal national execration. * * * 
A grosser absurdit)^ surely never entered the mind of an intel- 
ligent man, educated under a Government having a written 
Constitution." 

This denunciation, and the argument made in its vindica- 
tion, Mr. Adams, from his seat in Congress, promised to an- 
swer ; but from some unexplained cause he never made the 
attempt. It was predicted at the time that " these ravings of 
Mr. Adams" would hereafter be " quoted as authority on con- 
stitutional law," and so it has turned out. Among the mai-.y 
so using those ravings my attention has been very recently 
called to a pamphlet written by a law professor in a Massachu- 
setts college, who has the bold frankness to tell his employers 
and the public that he so uses them before his class. He also 
quotes the clause of the Massachusetts Constitution, saying 
that, except "by authority of the Legislature," no person can 
in any case be subjected to the law martial " but those engaged 



200 THE LAW OF WAR. 

in the military service ; and intimates the opinion that, notwith- 
standing this clear provision, martial law would prevail in time 
of w^ar, and the commander of the State militia would have 
the rightful power to disregard the State Constitution. In 
other words, or rather the effect of this is, that the people of 
this country have not the right of self-government, not having 
the privilege of making a Constitution to suit themselves. 
This is not merely folly ; it is wickedness. It is treason against 
civil liberty and the Constitution ; it is moral treason against 
the Government. A college is somewhat of a nuisance which 
permits the inculcation upon our young men of such debasing, 
anti-republican principles so destructive of every enlightened 
sentiment of civil liberty. We may cease to wonder at the 
decay of that devotional fealty to the Constitution which was 
formerly common to nearly all educated Americans. He seems 
to think that whatever " might be subversive of the efficiency 
of military operations" cannot be secured against military 
power by the people in their Constitutions ; he deeming the 
efficiency of militar}^ operations the summum bonum of national 
existence. How differently do these degenerate sons of Mas- 
sachusetts think of the necessity and safety of military supre- 
macy from their revolutionary fathers. Those men of the Re- 
volution held military sway in utter abhorrence, whilst their 
degenerate sons deem military supremacy so indispensable to 
the State that the people themselves are not competent, by any- 
thing they may say or do, to take that supremacy from the 
military. The Federal and State Constitutions are all made 
in the spirit of utter repugnance to military rule, and have 
done everything that written words can do to keep down mili- 
tary supremacy at all times, under all circumstances. For in- 
stance, they all say in effect what that of New Hampshire ex- 
presses in the following w^ords : " In all cases, and at all times, 
the military ought to be under strict subordination to, and 
governed by, the civil power." There is no single purpose 
more distinctly legible throughout those Constitutions than 
that of keeping the military in subordination, and never allow-' 
ing them an occasion or pretext for asserting in their own be- 
half a power above the law. Unlike this professor, the framers 
of those Constitutions deemed that subordination an infinitely 



THE LAW OF WAR. 201 

greater State necessity than any otlicr tliat could occur, far 
greater than the mere " efficiency of military operations." The 
Constitution of Massachusetts is the only one that seemingly 
permits the introduction of martial law even by legislative 
authority. 

The learned professor is graciously pleased to admit that if 
"martial law is the will of the commander-in-chief," "it can- 
not exist in this country consistently with the Constitution, for 
it would be utterly subversive of the Constitution for the time 
being. ISTeither the President or Congress can constitutionally 
proclaim or authorize such a power." But he seems to think 
that if he had the defining of martial law, he could devise 
something efficient, without trenching on the Constitution. 
Unfortunately, however, he ha\4ng no such privilege, and the 
will of the commander being verily the only martial law of 
which we have any knowledge, or of which the law books giTe 
any information, the nation must be deprived of his proffered 
services as a lawgiver. 

Still the professor claims for military commanders power 
not only to do nearly everything that may appear to them to 
be required by military necessity, but to do so free from per- 
sonal responsibility to the law, with a total exemption from 
personal arrest, civil or criminal, during military operations. 
To prove the necessity for this exemption from arrest, he sup- 
poses a sheriff with his posse, for the purpose of arrest, assault- 
ing the commander's army in the rear, whilst the enemy are 
fighting him in front. This supposed case could never occur, 
for there is not a sheriff in the whole Union fool enough to 
attempt an arrest under such circumstances ; and if such a one 
there is he could not find five men in any State fools enough 
to join him in the attempt. Tliat and such like supposed cases, 
invented for furnishing a plausible reason for subverting a 
fundamental principle of the Constitution, only serve to bring 
in doubt the sanity of the supposer. Why not, with equal pro- 
priety, suppose hundreds, nay thousands, of unoffending citir 
zens, men, women, children, wantonly murdered under the 
rule of martial law, or with their houses burnt and their prop- 
erty destroyed, turned out in the mid-winter of a severe 
climate to perish with cold and hunger. If the public press 
26 



202 THE LAW OF WAR. 

speaks truth, tlie possibility, if not the actuality, of the latter 
supposition is being proved under the oj)erations of martial 
law in Western Missouri. In full corroboration there might 
be cited the three w^anton massacres committed without pun- 
ishment or rebuke in the streets of St. Louis by German sol- 
diers upon unoffending men, women, and children. 

The correspondent of one of the ISTorthern papers says that 
the President never reads newspapers. The probability that 
he has not time to do so gives this assertion some plausibility. 
Is there no humane citizen, having access to the President, 
who will call his attention to these manifold atrocities ? Gen- 
tlemen of first respectability, who have known him long and 
well, still insist that his heart is in the right place and of the 
right make ; that it is most kindly and humane. If such things 
can be done under such a President, we have little temptation 
for violating the Constitution to let in the rule of martial law. 

By way of legal authority or precedent in his support, this 
professor cites the obiter dicta of Judge Taney in the Rhode 
Island case, and in that of Mitchell vs. Harmony, 13 Howard, 
115. The first of those cases has already been commented on 
in a previous pamphlet. The other case was a suit brought to 
recover the value of goods seized or lost by the alleged illegal 
conduct of an oflacer during the invasion of Mexico by one of 
our armies. The court decided that there was no actual ne- 
cessity for the seizure, and, after so deciding, it was coram non 
judice to say wdiat would have been the liability if there had 
been such necessity. The opinion extra judicially says : " There 
are, without doubt, occasions in which private property may 
lawfully be taken by a military ofiicer for public use. In such 
cases Government is bound to make full compensation to the 
owner, but the ofiicer is no trespasser." This is in seeming 
contradiction to what the opinion afterward says: "It can 
never be maintained that a military officer can justify himself 
for doing an unlawful act by producing the order of his supe- 
rior. The order may palliate, but it cannot justify." How 
much more in harmony with this principle would it have been 
if the opinion had said, that when an officer chooses to recog- 
nize supposed necessity as superior authority, and* obey its 
command, such command may palliate, but not justify — ne- 



THE LAW OF WAR. 203 

cessitj not being recognized as a lawful authority in a Re- 
public. 

No precedent or authority is cited to sustain this dictum, and 
it is confidently believed that none could have been cited. The 
•whole opinion reads much more like the rescript of a Roman 
emperor than the decision of a court. There is no argument 
used to sustain the position, and it is contrarj^ to all proper 
usage of courts to dispose of so important a principle without 
either argument or citation of authority. In both these cases 
Judge Taney has betrayed, in the free use of his dicta, rather 
too much alacrity of leaning in favor of strong government. 
Since so high an example has been set for tracing legal opin- 
ions to imputed political bias, it may not be invidious to sug- 
gest that Judge Taney is also an Old School Federalist, and to 
intimate that these leaning dicta may perhaps be ascribable to 
his bias in favor of strong government. 

There is a principle or maxim of the common law that pri- 
vate right of property must yield to public necessity. The 
principle has been adopted or ratified by our Constitutions, but 
it has been suh modo only. They all recognize the universal 
principle of eternal justice involved in the sanctity of private 
property, and expressly prohibit its being taken for public use 
without compensation. The adoption of the principle at all 
results entirely by implication from this prohibition. Judge 
Taney admits that " the Government is bound to make full 
compensation. ' ' But how is it bound ? The Constitution gives 
no remedy against the Government. Congress, though it 
ought to have done so, has given no such remedy. The Gov- 
ernment, therefore, is under only an honorary obligation, which 
in practice most generally proves near of kin to no obligation 
at all. Indeed, the delays and difliculties in obtaining an act 
of Congress are such as to preclude the prosecution of a small 
claim altogether. This could not have been the kind of com- 
pensation, or the remedy for compensation, contemplated by 
the Constitution in giving its implied sanction to the arbitrary 
taking of private property for public use — that forcing individ- 
uals to contribute an undue share towards the w^ants of the 
Government. The Constitution must have meant to give the 
owner a much more substantial protection and remedy. Till 



204 THE LAW OF WAR. 

Congress shall give a direct, available remedy against the Gov- 
ernment, justice forbids, the true intent of the Constitution 
forbids, exempting from personal responsibility the officer who 
makes the forcible seizure. His responsibility is the only 
available avenue to redress for humble citizens residing remote 
from the Capital. The superior influence and information of 
the officer affiord him a far better chance of obtaining indem- 
nity through the slow and uncertain process of an act of Con- 
gress. Besides, his personal responsibility will make him 
observe a proper caution in the exorcise of his arbitrary dis- 
cretion in making seizures. Such caution is of great value to 
the Government, and sound policy, for its protection, requires 
the question to be settled in the way best calculated to ensure 
the exercise of such caution — the perpetual apprehension of 
being imposed upon by claims for collusive seizures and ex- 
cessive seizures is a main reason why Congress manifests such 
reluctance and dilatoriness in the adjustment of such claims. 
The interests of both the Government and the owner concur 
in requiring the Constitution to be so construed as not to allow 
a taking of private property for public use, without compen- 
sation actually made, which renders the officer personally liable 
in the first instance, compelling him, instead of the owner, to 
look to the Government for indemnity. Such, it is hoped and 
believed, will be the ultimate decision of the Supreme Court 
upon full and fair reconsideration. Adherence to this dictum 
requires a false construction, in violation of the words and 
whole spirit of the Constitution. If Congress wishes consti- 
tutionally to exercise the permitted right of eminent domain 
or sovereign power over private property, it must pay in ad- 
vance, or give the owner a direct, available remedy against the 
Government; otherwise, its officers must remain personally 
liable till compensation is actually made. 

It is only by a most liberal stretch of the powers of con- 
struction that even proper adequate remedy can be allowed to 
stand, in lieu of actual compensation b}'^ pre-payment. The 
bill recently passed the Senate attempting to authorize the 
seizure, for national use, of railroads and telegraph lines, gives 
no such proper adequate remedy, and is therefore unconstitu- 
tional under any allowable construction. Instead of assessment 



THE LAW OF WAR. 205 

of compensation, to be made under judicial supervision, witli 
direct recourse upon the treasury for the amount, it directs 
that three commissioners, of the President's appointing, shall 
make the assessment for the information of Congress, with 
whom it will still he discretionary whether to pay or not. It 
is absurd to suppose that the court will consider this as ade- 
quate remedy in lieu of just compensation pre-paid. 

Another section of this bill authorizes the impressment into 
the nation's military service of all the employees of the roads 
and lines so seized, subjecting them also to the pains and pen- 
alties of the rules and articles of war. Congress probably has 
the power to compel the militia to stand a draft for a term of 
military duty, but it is doubtful whether it can recruit the 
regular army in that way. But even if it coukl, there would 
still be reason for more than doubts whether that would au- 
thorize this summary impressment of a particular class of 
citizens, w^hilst all other citizens remain exempt from such op- 
pression. There may be no specific clause expressly prohibit- 
ing the exercising of such tyrannical power ; but what is 
equally efficacious, such power is repugnant to republican gov- 
ernment, and the whole spirit of the Constitution, which re- 
quires the burthens of government to be distributed with 
something like fairness and equality among our citizens. This 
is in strict analogy with those adjudications and repeated de- 
clarations of our most eminent jurists, that, even if the Con- 
stitution had not prohibited the taking of private property 
without compensation, it could not be done, because such op- 
pression is so repugnant to the eternal principles of justice, 
that it could not be allowed in a land of liberty, boasting a 
republican government. But if specific prohibition must be 
found against this mode of legislation for taking whole classes 
of citizens from under the protecting guarantees of the Con- 
stitution, it is believed that the prohibition against bills of 
attainder may well be applied for that pui-pose. It is no light 
penalty to make a soldier of a citizen without any fault in him 
and against his consent, whilst his neighbors are exempt from 
such arbitrary usage. If this view be correct, if this indeed 
be punishment, however light, the bill is to every intent a bill 
of attainder. The Government can with no more propriety 



206 THE LAW OF WAR. 

use punishment of the innocent as a means of promoting the 
public interest, than it can take private property for public use 
without compensation. 

The discussion of this bill in the Senate is a marked feature 
of the times, showing by what an attenuated thread the liber- 
ties of the nation are now suspended. Senators of first respect- 
ability and intelligence, whilst proclaiming their unalterable 
determination not to go beyond the Constitution for power to 
carry on the war, expressed their undoubted belief that the 
President already has all the power attempted to be conferred 
by this bill. 

All this, however, is wandering somewhat from the main 
purpose of this chapter, which was to make a comment upon, 
the text extracted from the speech of J. Q. Adams. 

The pretence that the Constitution was made for peace and 
not for war, is a new invention of the enemy. It was formerly 
thought that if the bill of rights was made more particularly 
for either, it was for time of war or rebellion, because those 
would be times when men's passions would be aroused and 
majorities would persecute minorities. The old Federalists, 
who disbelieve in popular self-government, who derided our 
Government for its alleged feebleness, who said it might do 
for the halcyon days of peace, but it would not answer for the 
stormy times of war, did not pretend that it was intended to 
operate only during peace, but complained that, being for war 
as well as peace, it was too feeble for the former. Their com- 
plaint was that an undue trust in the people, and an undue 
jealous distrust of Government, had emasculated it in all its 
departments, especially in its executive department ; that war 
could not be properly carried on, or rebellion suppressed, with 
such inefficient powers. Their complaint was, that there could 
be no enlargement of those powers during war or other emer- 
gency of great State necessity; that an over jealous solicitude 
for the preservation of liberty had deprived the Government 
of necessary efficiency. They never consoled themselves with 
the belief, nor dared make the assertion, that there was an in- 
herent principle, or one lurking in the Constitution, which, 
whenever an emergency arose, would, by the law of necessity, 
" sweep the Constitution by the board," and substitute the law 



THE LAW or WAR. 207 

of war in its place. Sucli an assertion would have sounded 
badly in the ears of the men of the Revolution, who, in their 
Declaration of Independence, had made it one of the principal 
grounds of complaint against the King, that " he has aftected 
to render the military independent of, and superior to the civil 
power." Against that military superiority, they had success- 
fully fought out the Revolution ; and in making their Consti- 
tutions, they were specially careful to give it no countenance 
or foot-hold. 

There is not, there never can be, in this country, a law of 
war, different from the constitutional law of the land. There 
is, there never can be here, any law of war other than that 
which Congress has created, or may create, within the 
limits of its constitutional power. The usages of civilized 
warfare, derived from the law of nations, come to us entirely 
by Congressional adoption, express or implied, and are neces- 
sarily limited within the range of Congressional power. They 
are adopted in mitigation, not as an enlargement of military 
power. 

"Whilst conducting war in a foreign country, our ivhole Gov- 
ernment is under no check or responsibility but that of the 
enlightened censure of Christendom, though tlie Executive is 
under the control of Congress. It is otherwise when the war 
is conducted on our own soil, whether in defence against in- 
vasion, or defensively or aggressively against rebellion. Here 
the Constitution has full and direct sway, acts as it proclaims 
itself to be the supreme law of the land, and is to every intent, 
the law of the war. It permits the law of nations, or its rules 
of civilized warfare, to be the laiv of such a war so far as it 
applies to foreign enemies or to avowed rebels, but never to 
our own non-combatant citizens ; for that would, j)ro tanfo, be 
an abdication of our national supremacy within our own do- 
main — the intervention of foreign law for the government of 
our own people. It would, pro tanto, be an abrogation of the 
solemn national declaration, that the Constitution " shall be 
the supreme law of the land." 

In express negation of any other hypothesis, we find the 
Constitution, in full view of all the exigencies of military 
power in time of war, carefully saying : " No person shall be 



208 THE LAW OF WAR. 

lielcl to answer for a capital or otherwise infamous crime, un- 
less on a presentment or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in the militia when in 
actual service in time of war or public danger ; * * * ^or be 
deprived of life, libertj^, or property, without due process of 
law ; nor shall private property be taken for public use, with- 
out just compensation." 

If it had been desired or contemplated that the " life liberty, 
or property" of a citizen not engaged in "the land or naval 
forces," or in actual rebellion, should be brought under arbi- 
trary, military power "in time of war or public danger," the 
Constitution would have said so, and placed us all on the same 
footing with the militiaman " w^hen in actual service in time 
of war or public danger." Such militiamen, together wdth 
that of " cases arising in the land or naval forces," and armed 
rebels, are the only exception to the comprehensive protection 
with which we are all panoplied, against the deprivation of 
" life, liberty, or property, without due process of law," at all 
times and under all circumstances. 

The assumption by our military commanders of power, under 
the pretended law of war, as something different from the 
constitutional law" of the land, to deprive a non-combatant 
citizen of "life, liberty, or property, without due process of 
law," is pure usurpation. The only law of war for their guid- 
ance and government, is that from which they derive their 
commissions, together with their whole power — that is, the 
Constitution and the constitutional acts of Congress. 

Influenced by the pernicious example of General Jackson, 
and the still more pernicious precepts of Mr. Adams, some of 
our modern commanders have fallen into the great mistake of 
supposing that upon the breaking out of the war of this ac- 
curs!r.^ed, most detestable rebellion, that the law of war, as ap- 
plicah;^le to an invasion by us of a foreign country, is trans- 
planteovi ^nd applicable here wdthin our own territory. Under 
this idea* Qj^e of them has collated from some military treatise 
a long strfy^g ^f r^^ies, deduced from that law, and attempts, by 
his mere lAiilitary order, to apply them to all the citizens of 
Missouri; ^iVd among the rest he proclaims them to be under 
the comprehe\,-^gjyQ ^^\q ^f martial law, be that what it may. 



THE LAW OF WAR. 209 

What it is, under his own Latitudinous interpretation, he has 
given repeated illustrations. He arrests, incarcerates, or ban- 
ishes from the State whoever he pleases. He suppresses news- 
papers at pleasure, and has placed all published in the State, 
under military surveillance, directing a copy of each emission 
to be sent to head-quarters, under the penalty of suppression. 
He makes out a proscription list of three hundred of the men 
and women of St. Louis, who he suspects of disloyalty ; appoints 
three or five persons as a board, to select sixty fi-om that list 
upon w^hom an assessment of ten thousand dollars is to be 
levied, in proportion to their respective degrees of suspicious- 
ness and ability to bear the burthen. If any of the sixty claim 
to be loyal, and fail to prove their loyalty to the satisfaction of 
the board, he or she is to be assessed ten per cent additional. 
If any fail for a week to pay the assessment, they incur an 
additional penalty of twenty-five per cent. If any resist the 
lev}', they are to be dealt with by a military commission. The 
money thus raised to be applied to the relief of such Union 
people as had been driven from their homes by the rebels. 
'No case of actual resistance occurring, we are left to conjecture 
how an offender would be dealt with by his military commis- 
sion. But one of the proscribed sought protection from the 
law, by suing out a writ of replevin for his goods. He was 
immediately seized and banished from the State, with a very 
significant intimation that if he dared return, he would be shot. 
The president and professors of a college, the directors of a 
commercial library and of a chamber of commerce, are to be 
removed and others appointed. 

This amiable General, at the inauguration of his own dicta- 
torship over the people of Missouri, was a stranger in St. Louis, 
who could have known but little of its inhabitants, he having 
been but recently picked up somewhere in California and put 
in charge of that military department ; and consequently, in 
making out his proscription list, must have been wholly in- 
debted to that exemplary class so loved and admired every- 
where, the class of spies and informers. Those of them to be 
found in St. Louis were peculiarly trustworthy, from the no- 
torious fact, that none of our other cities have ever been near 
2T 



210 THE LAW OF WAR. 

SO much afflicted witli those virulent party strifes which en- 
gender such long enduring, bitter personal animosities. 

Whence the power for these acts ? How degrading the sur- 
mise, that national necessity compels resort to such petty, des- 
picable tyranny ! Is this, too, part of the law of war, of a great, 
imperative, overruling State necessity which throws aside the 
Constitution and lets in the arbitrary will of a military com- 
mander as the supreme law of the land. His intelligent coun- 
trymen will laugh at his ridiculous folly, but thc}'- cannot fail 
to pay the extorted tribute of admiration for his super-super- 
lative impudence. Can it be that he is so ignorant as not to 
know that his sales of property will be treated by the courts 
mth nothing but contempt, except so far as to lix personal 
responsibility upon himself and his subordinates ? If not, then 
how does he escape the imputation of an attempted swindle 
upon the confiding ignorant who may make purchases at his 
sales. He may disregard such imputation, and trust to the 
present Congress for indemnity against his personal liability. 
But some one should tell him that the personal responsibility 
wdll come hereafter, when the present ruling party may not 
have the majority in Congress ; that party majorities are pre- 
carious things, and that any new party coming in upon the 
overthrow of that now dominant would let him rot in jail, rather 
than appropriate a dollar toward relieving him from the effects 
of his atrocious impudence and folly. 

The beneficent influence of military rule, and the necessity 
for its interposition as a power above law and Constitution, 
may be further illustrated by the opposite fates of Missouri and 
Kentucky under the national troubles. Both were impelled 
by every motive of interest, patriotism, and love for both sec- 
tions, to keep out of the war as long as possible, in order that 
they might perform the office of mediators in bringing about 
peace and restoration of the Union. Missouri, with a larger 
population, had only half as many slaves as Kentucky, and 
being clasped on three of her sides by free States she had a 
decidedly stronger interest in preserving the Union than Ken- 
tucky. The votes of their people proved that they thought so. 
Only two-thirds of the voters of Kentucky voted a decided pre- 
dilection in favor of maintaining the Union, whilst three-fourths 



T n E LAW OF AV A R . 211 

of those of ^Missouri voted in tliat Avay. Kentuek}' has been 
treated with kindness and conciliation ; no martial law, no 
militaiy oppression, but slight abuse even of military power. 
So soon as she was compelled to take sides in the "war, she 
frankly, cordially, ranged herself on the side of the Govern- 
ment ; and though a fourth of her territory was under the domi- 
nation of invading rebels, has sent more volunteers into the 
field than any other State in proportion to her whole popula- 
tion. Under some malign, misguiding influence operating upon 
the Administration, Missouri was treated very differently. With- 
out going into particulars, sufiice it to say that she was treated 
with rigor. "Whatever benefit is derivable from the application 
of the law of war, or martial law, was fully tested. The result 
w^e all know. Thousands of atrocious murders perpetrated on 
both sides, and at least one-third of the State desolated of both 
population and property ; whilst in Kentucky there has been 
but few murders, and comparatively veiy little destruction of 
private property. Wliat amount of volunteers Missouri has 
sent to aid the Government the writer's information does not 
enable him to state ; but it is notorious that, first and last, at 
least fifty thousand of her sons have turned out in aid of the 
rebellion, or in home resistance to what was deemed unconsti- 
tutional oppression. Whilst, for the rest of this war, it will 
require full twenty thousand men in Missouri to keep her in 
subjection, the Government need not have a man in Kentucky 
to keep her in loyalty. 

The opposite results from these two opposite courses of policy 
must, to say the least, forever leave it in grave doubt whether 
in this country it w^ill aid, or rather, whether it will not preju- 
dice the Government's efiiciency by resorting to unconstitu- 
tional measures of coercion. 

An illustration can be given which will serve to make New 
Englanders at least appreciate the beauties of martial law\ 
General Jackson said in a letter, and frequently asseverated in 
conversation, that he would have hung the leaders of the Hart- 
ford Convention if he had been commander of the military 
district in which it sat. It was notorious, or at least it w^as 
generally believed, that the purpose of that convention was to 
bring about the secession of New England from the Union. 



•212 THE LAW OF WAR. 

So prevalent was this belief, tliat if GeneralJacksoii had actually 
hung those leaders, under his idea of his military power, or under 
martial law, a large majority of the inconsiderate part of the 
nation would have applauded the act. "What would have heen 
the consequence ? "Would that have silenced the opposition in 
New England ? So far from that, it would have been the sig- 
nal for a unanimous revolt that would have permanently carried 
New England out of the Union. It would have furnished a 
justification or apology for a revolt and secession which other- 
wise would have been without just cause or plausible excuse. 

Arbitrary, despotic measures can never be politic measures 
to use against Americans for bringing them under obedience 
to the law, especially if those measures are tainted with ille- 
gality or usurpation. The exercise of usurped despotic power 
over an enlightened American agonizes every fibre of his moral 
sensorium. There is nothing he holds in greater abhorrence. 
The celebrated Edmund Burke, in his memorable denunciation 
of arbitrary power, declared that the people themselves could 
not, even by their own voluntary compact, be rightfully sub- 
jected to arbitrary power — that such a compact would be void. 
The people of Kentucky fully adopted this sentiment, and gave 
it a sort of consecration by the following clause of their Con- 
stitution: '■'■That absolute, arbitrary poioer over the lives, liberty, 
and property of freemen exists nowhere in a republic — not even in 
the largest majority.'^ 

Note. — Since the foregoing was written there has been published, in the 
Boston Law Reporter, extracts from the diplomatic correspondence of Mr. 
Adams, whilst Minister at London and Secretary of State, which entirely re- 
fute the inconsiderate dogma of his speech. 

In his letter of August 22d, 1815, he says he told Lord Castelreagh, in a con- 
versation concerning the restitution clause in the treaty of Ghent: " Our ob- 
ject was the restoration of all property which, by the usages of war among 
civilized nations, ought not to have been taken. All private property on shore 
was of that description ; it was entitled, by the laws of war, to exemption from 
capture — slaves were private property." * * * " It was true, proclamations 
inviting slaves to desert from their masters had been issued by British officers ; 
we believed them deviations from the usages of war ; we believed that the British 
Government itself would, when the hostile passions arising from the state of 
war should subside, consider them in the same light. He manifested no dis- 
satisfaction at these remarks, nor did he attempt to justify the proclamation." 

In his letter of July 5th, 1820, to our Minister at St. Petersburg, he says: 



ABOLITION PROCLAMATION. 213 

"Admiral Cochrane had no lawful authority to give freedom to the slaves 
belonging to the citizens of the United States. The recognition of them by 
Great Britain in the treaty as property, is a complete disclaimer of the right 
to destroy that property by making them free. Any engagement with them 
contracted to that effect was, in relation to the owners of the property, unlaw- 
ful, and could not divest the owners of their property." 

In his letter of July 7th, 1820, to our Minister at London, he says: "The 
principle is, that the emancipation of enemy's slaves is not among the acts of 
legitimate war, — as relates to the owners, it is a destruction of private property, 
nowhere warranted by the usages of war." 

In his letter of October 18th, 1820, to our Minister at St. Petersburg, speaking 
of the claim to emancipate slaves as a legitimate right of war, he says: " No 
such right is acknowledged as a law of war by writers who admit any limita- 
tion. The right of putting to death all prisoners in cold blood, and without 
special cause, might as well be pretended to be a law of war, or the right to 
use poisoned weapons, or to assassinate." 

Respect for the memory of so eminent a citizen precludes all harsh comment 
upon this gross inconsistency. It will suffice to quote the following recent 
appropriate comment by a talented citizen of his own State: "If at a later 
period of his life, amid the excitements of a heated personal debate, he ex- 
pressed opinions somewhat at variance with those of his diplomatic argument 
of this question, it should not be forgotten that in this instance he was speak- 
ing with all the responsibility of a minister of State, while in that he was 
defending himself against a parliamentary attack of unexampled bitterness." 

:n'o. n. 

ABOLITION PROCLAMATION. 

Wliy the President urill iwt enforce it. 

October 25, 1862. 

1. It is an attempted usurpation of a power having no 
semblance of justification under the Constitution. 

2. It is a practical application of that pernicious higher 
law heresy which, in effect, denies the nation the right or com- 
petency to self-government, by denying its right to restrain 
the power of its official servants. 

3. It would be succumbing to the dictation of that fiinatic 
faction, who have been so largely instrumental in producing 
the calamity under which the nation now suffers, and of whose 
leaders it is the public boast that they abhor the Constitution, 
and that, for more than twenty years, they have tried to destroy 



214 ABOLITION PKOCLAMATION. 

tlie Union — a faction who, if not the irresponsible victims of 
monomania, are the victims of a ruthless, vindictive hate 
toward the people of the South, which, if glutted through 
this policy, will render our country the abhorrence of all 
Christendom, as they themselves are the opprobrium of hu- 
man nature. 

4. It is a direct incentive, a certain promoter of slave in- 
surrection — servile war, resulting in the devastation of the 
population and property of eleven States — whilst accompanied 
by all the horrors of indiscriminate massacre of the helpless 
whites, with the probable destruction of the larger part of the 
innocent, heretofore unoffending, blacks. 

5. It would be a gross violation of one of the plainest of 
the President's sworn duties under the Constitution, which so 
far from permitting him to promote, makes it his imperative 
duty to suppress, such insurrections. 

6. It is of the nature of such insurrections rapidly to prop- 
agate from county to county, from State to State, and neces- 
sarily to involve the Border Slave States in the mischief, in the 
horrors of that terrible calamity so strongly depicted within 
the last few years by that distinguished ISTorthern statesman, 
Edward Everett. 

7. It would violate that principle of the law of nations, of 
the law of civilized warfare, inculcated by our Declaration of 
Independence, to which our nation was fully committed during 
the administrations of Madison and Monroe, by the diplomatic 
correspondence of that eminent legist John Quincy Adams, 
w^ho pronounced the inciting such insurrections as indefensi- 
ble " as the use of poisoned weapons, or the cold-blood killing 
of prisoners." 

8. It would inflict an indelible stain on our national cha- 
racter. 

9. It would intensify that sectional hate, introduced and 
promoted by abolitionists and fire-eaters, the bitter effects of 
which our Government will suffer in the long future, like what 
the British Government has felt for centuries from the hate of 
the Irish people. 

10. It would destroy that bountiful market, more than two 
hundred millions annually, which has so richly rewarded the 



ABOLITION PROCLAMATION. 215 

agricultural, manufacturing, and commercial industry of the 
Korth, and deprive tlie South of the ability to sustain a full 
share of the enormous burden of our national debt. 

11. It would embitter and prolong the war, preclude all 
chance of voluntary restoration, and so far justify the South 
in the resistance of despair, as to excite in its behalf the sym- 
pathies of all Christendom. 

12. It would be a betrayal of those reiterated pledges of 
the Republican party, in and out of Congress, under which the 
war was commenced. 

13. It would be an especial violation of good faith toward 
the Border States, who went into the war confiding in those 
pledges. 

14. Its policy cannot be carried out whilst the good people 
of the I^orth retain any sense of that mutual affection which 
it is fondly hoped they reciprocate with their brethren of the 
Border States. 

15. It will, when received in connection with the declara- 
tion of martial law throughout the Union, encourage by ex- 
ample the erection of that military dictatorship which consid- 
erate men are everywhere foreboding as the dreadful outcome 
of the war, and which a distinguished Republican leader has 
claimed for himself and his fanatic colleao;ues in Cons-ress the 
rightful power to establish, and thereby supersede the Presi- 
dent. 

16. It would be in disregard, in flagrant contempt, of that 
national will so distinctly manifested in the result of the recent 
elections ; those elections, manifesting as they do, a popular 
determination that the South shall not be ruthlessly destroyed 
under the pretext of restoring it to the Union, nor the Consti- 
tution destroyed under the pretext of its preservation ; and that 
the war, whilst prosecuted with all proper vigor for suppress- 
ing the rebellion, yet it must be under and not over the Con- 
stitution — leaving inviolate free speech, free press, free ballot, 
freedom from arbitrary imprisonment, and all other muniments 
of civil liberty'. The war against the rebels is sufficiently 
arduous without the President suffering himself to be dictated 
to by a contemptible minority into superadding a war against 
the public sentiment of the ITorth. 



216 A EEVIEW OF THE ARGUMENT, ETC. 



CHAPTER XV. 

August, 1861. 

A REVIEW OF THE ARGUMENT OF PRESIDENT LINCOLN 
AND ATTORNEY-GENERAL BATES, IN FAVOR OF PRES- 
IDENTIAL POWER TO SUSPEND THE PRIVILEGE OP 
THE WRIT OF HABEAS CORPUS. 

" We are in the midst of strong agitations, and are surrounded by dangers 
to our institutions and Government. The imprisoned vrinds are let loose. 
The East, the West, the North, and the stormy South, all combine to throw 
the whole ocean into commotion, to toss its billows to the skies, and disclose 
its profoundest depths. I speak for the preservation of the Union. I speak 
out of a solicitous and anxious heart, for the restoration to the country of that 
quiet and harmony which make the blessings of this Union so rich and so 
dear to us all. If I can do anything, however little, for the promotion of this 
end, I shall have accomplished aU that I expect." — Webster. 

It may be necessary, with those to whom the writer is not 
personally known, to premise, that he claims to be a thorough 
and devoted Unionist. He has manifested his right to make 
that claim by having, during the last five years, written and 
published more, probably, than any other man, to arouse the 
nation to a perception of the proximate danger to the Union 
from the treasonable machinations of secessionists and aboli- 
tionists. For all that time he has been constantly predicting the 
present state of national affairs. He has assiduously assaulted 
the secession heresy with argument and denunciation. He has 
done what he could to portray the inestimable value of the 
Union, and the endless, numberless evils of its dissolution. 
Could there be such a thing as a dictatorship, he should deem 
its power rightly employed in decimating leading secessionists 
and abolitionists, in decimating the members of secession con- 
ventions, and especially in decimating the secession members 
of the Virginia Convention, the Tennessee and Missouri Le- 
gislatures, who so signally betrayed popular trust. 



A REVIEW OF THE ARGUMENT, ETC. 21.7 

He believes the present civil war will be long protracted ; 
that we are marcliing witli rapid strides to that military des- 
potism predicted for us by the fathers of the Republic ; that 
the preservation of the Constitution, with those principles of 
civil liberty which it consecrates and secures, is the very highest 
obligation of patriotism, far above the mere preservation of the 
Union ; that the entire destruction of the Constitution and civil 
liberty is a price the nation cannot afford to pay for preserving 
the Union, even if it were not absurd to suppose that the pre- 
servation of the one requires the destruction of the other ; that 
it is a gross calumny on the structure of our Government, to 
charge that it is too weak to put down the present rebellion ; 
and that if it cannot be put down with an army of five hundred 
thousand men, and a large nav^y, without trampling on the 
Constitution, it will be because of the incompetency of the 
President and his Cabinet, and not from any fault in the struc- 
ture of the Government. With these views, the writer means 
perseveringly to use his very humble efforts to stay the march 
to despotism, and earnestly entreats the co-operation of the 
thousands of far abler and younger men scattered through the 
country. The opinions, as to principles now to be vindicated, 
were all matured and published near twenty years ago. 

President Lincoln, in his message, avows that he has " au- 
thorized the commanding General, in proper cases, according 
to his discretion, to suspend the writ of habeas corpus; or, in 
other words, to arrest and detain, without resort to the ordi- 
nary process and forms of law, such individuals as he might 
deem dangerous to the public safety." 

After a very brief discussion, of his power to do this, he 
excuses the not giving a more extended argument, because 
one from the Attorney-general will be presented to Congress. 
He thus adopts the latter, and makes it his own. It is, no 
doubt, the result of full consultation between them, and also 
with the Cabinet. The President is, to all intents, as fully re- 
sponsible for the argument as the Attorney-general himself. 
The matter will be so treated. 

The argument endeavors to prove the President's power so 
to suspend the privilege of the writ, so to order sucli arrests, 
and that in so doing he is not controllable by the judiciary; 
28 



218 A REVIEAV OF THE ARGUMENT, ETC. 

and perhaps, also, its true meaning is, that he is not controlla- 
ble by Congress either. In other words, it seems to be con- 
tended, that in the exercise of his executive functions, for the 
suppression of rebellion, at least, if not for all other pui-poses, 
he acts by his own arbitrary discretion, free from the control 
of Congress and the judiciary — either, or both. The preten- 
sion to this power is not confined, either by argument or the 
President's acts, to such States or districts as may have been 
proclaimed to be in insurrection ; but the power operates all 
over the Union, and may be applied equally to a citizen of and 
in Maine, as to an inhabitant of a proclaimed State. 

This is a high pretension, now for the first time asserted in 
behalf of a President. In the existing state of things, and in 
view of what has already been done, it is a pretension of the 
most momentous importance. It places the personal liberty 
of every man in this nation within his arbitrary discretion. 
He may arrest any one, without justifiable cause, transport 
him where he pleases, incarcerate him during the continuance 
of this war of probably many years' duration, subjecting him 
during the while to such deprivation, hardship, and humilia- 
tion, as the President may think proper to inflict. For all this 
the citizen is to have no redress. Against such atrocious, 
tyrannical outrage the law of his country can aiford him no 
redress. 

Such startling innovation upon what has heretofore been 
considered the well-settled prmciples of our Government, such 
thorough destruction of the most cherished right of freemen, 
the nation will naturally expect the President and Attorney-gen- 
eral to sustain by some show of precedent, some judicial deci- 
sion, or at least the opinion of some lawyer or statesman. But, 
reasonable as such expectation is, it has not been complied 
with. They adduce no authority — none whatever in their 
behalf — not a single precedent, decision, or opinion. The few 
cases they do cite, having not the slightest bearing in their 
favor, their citation only serves to prove, that, after careful 
search, no semblance of an authority can be found. (For a 
synopsis of the cited cases, see Appendix D.) 

A reference to the synopsis will show that they stand ex- 
posed, for impudently attempting the most daring usurpation 



A REVIEW OF THE ARGUMENT, ETC. 219 

of tyrannical power, and a most pernicious innovation on the 
structure of the Government, without a precedent or an au- 
thority to sustain them. Their claim rests exclusively upon 
their reasoning, which will he found as little reliable as their 
pretended authorities. 

These tremendous powders are vindicated by various propo- 
sitions — some merely assumed, wdiile others are attempted to 
be proved. They wall be considered in the following order : 

1. The ex-officio fower to arrest. 

2. The exemption from control. 

3. The constitutional prohibitions. 

The argument, by way of introduction, gives the following 
fair view of the fundamental structure of the Government, 
which is most cheerfully adopted as a starting point for this 
review. Every lawyer wnll concur, and would use similar lan- 
guage, in any argument for keeping the President within con- 
stitutional limits. How it subserves an argument, whose main 
purpose is to free him from all restraint, is not so obvious. 

" In England it has grown into an axiom, that the Parlia- 
ment is omnipotent. For all the ends of government the Par- 
liament is the nation. But, in this country, it has been care- 
fully provided otherwise. * * * In breaking the ties w^ith the 
British empire, complaints w^ere levelled chiefly at the King^ 
not the Parliament^ nor the people. In the formation of our 
national Government, our fathers seem to have been actuated 
by special dread of the unity of power, and, in framing the 
Constitution, they preferred taking the risk of leaving some good 
undone for lack of power in the agent, rather than arm any gov- 
ernmental ofiicer with such powers for evil as are implied in 
the dictatorial charge, to ' see that no damage comes to the Com- 
monwealth.' 

"Hence they adopted the plan of checks and balances, form- 
ing separate departments of government, giving each depart- 
ment separate and limited powers. 

" Our Government, indeed, as a whole, is not vested with 
sovereignty, and does not possess all the powers of the nation. 
It has no poivers hut such as are granted hy the Constitution, and 
many powers are expressly withheld. The nation is equal with 
all other nations, having equal powers, but it has not chosen 



220 A KEVIEW OF THE ARGUMENT, ETC. 

to delegate all its powers to this Government, in any or all its 
departments." 

That is, it has not delegated all its legislative or judicial 
power ; and, having " a special dread of the unity of power," 
it has been very careful not to delegate all its executive power 
to any single functionary. 

1. The Ex-officio Power of Arrest. 

Each department being confined to " granted and limited " 
powers, according to his full concession, the obvious first duty 
of Messrs. Lincoln and Bates was to show a grant of the power 
of arrest to the President, and how it is limited. An unlimited 
grant would not fulfil the terms of the concession. But this 
they do not do, nor pretend to do. They show neither a lim- 
ited, or unlimited grant of such power: neither can it be done. 
There is not a word in the Constitution to that efi'ect. 

In England the power is a prerogative of the Crown. But 
we have no prerogative powers in this country. In England 
even, it is an exceptional power of infrequent use, the power 
in practice being almost always confined to the judiciary. Our 
ideas of government, being so essentially derived from the 
principles and practice of that of England, the framers of the 
Constitution must have viewed the power of arrest as properly 
a judicial and not an executive function, and that consequently 
the whole power would go to the judiciary, in the absence of 
any express declaration to the contrary. Kot being properly 
an executive power, they knew that it would not pass under 
any general grant of executive power ; and if it had been de- 
sired or intended that the President should participate in its 
exercise, they would have been very careful to say so, and 
point out distinctly how far he should participate. This not 
being done, there is not even the semblance of a fair pretext 
for his participation to any extent whatever. 

The uniform usage of our Governments, both Federal and 
State, has been in strict conformity with this view. TVe know 
that Mr. Lincoln is the first President who ever attempted the 
exercise of such a power. It is confidently believed that no 
instance can be adduced of any such attempt by the Governor 
of any State, unless specially and explicitly so authorized by 



A KEVIEW OF THE ARGUMENT, ETC. 221 

lavT. It is also believed that there lias not been an instance of 
Bucli attempt, with or without law, for it is so contraiy to all 
our American ideas of proper government, that it is not credi- 
ble any State Convention or Legislature should have been fool- 
ish enough to confer such a power on a Governor. 

This is a high pretension, now for the first time asserted in 
behalf of the President. The attempted innovation should be 
well fortified with precedent or analogy. E'either is adduced. 
We are not even furnished with an attempted argument in its 
behalf. It rests entirely upon bold, impudent assumption. 

It is true, that, after General "Wilkinson, under circumstances 
of supposed State necessity of great urgency, had made arbi- 
trary arrests of suspected accomplices of Burr, President Jef- 
ferson approved his act, not by reason of its legality, but in 
despite its admitted illegality. The Supreme Court condemned 
the arrests as illegal, notwithstanding the Presidential ratifica- 
tion, and Congress persistently refused to indemnify Wilkinson 
for the damages to which he was made liable, at the suit of the 
persons arrested. 

The bill, which, about that time, at the instance of Jefi"er- 
son, passed the Senate, for suspending the writ of habeas corpus, 
and which was indignantly rejected by the House of Represen- 
tatives, contained express grant of power to the President to 
make arrests. This bill was, no doubt, drafted under advise- 
ment with Jefierson and his Cabinet, and is full proof that 
neither they nor the Senate thought the President, ex-officio, 
possessed any such power, or that he would possess it after the 
suspension of the writ, without an express Congressional grant. 

It is true, also, that General Jackson made sundry arbitrary 
arrests at l^ew Orleans, under his pretended martial laAv. But 
he had been told in advance by two most distinguished law- 
yers — Edward Livingston and Abner L. Duncan — who were 
his friends, and acted as his aids, that he had no power to de- 
clare martial law. An intelligent court-martial, of his own 
selection, decided his martial law to be a mere nullity, and 
gave him no power over citizens not attached to the army or 
militia. The District Court (IT. S.) afterward decided in the 
same way, as did also a very able Appellate Court of Louisiana, 
after full investigation and enlightened discussion. 



222 A REVIEW OF THE ARGUMENT, ETC. 

It is true, Congress, some twenty years afterward, refunded 
the fine imposed upon him by the District Court, but, in so 
doing, special care was taken not to use one word, either in 
the preamble or body of the act, in justification of his martial 
law, or in censure of the judge who imposed the fine. On the 
contrary, a Committee of the Senate, of which Mr. Berrien was 
chairman, and another of the House, of which the present Sen- 
ator Bearce, from Maryland, was chairman, each made a report 
denouncing martial law as wholly inadmissible in " this free 
Republic." 

It is not contended that a military commander may not make 
prisoners of rebels found resisting, with arms in their hands, 
and all others proximately present, aiding and assisting with- 
out arms, or found in illegal gathering, to aid rebellion, "War- 
fare against rebellion may, no doubt, be carried on according 
to the civilized usages of war among hostile nations ; and among 
the incidents thereto, is the making and detaining of prisoners 
to be handed over to the civil authorities for trial and punish- 
ment. But the arrest of citizens not engaged in hostilities is 
a different thing, and must be left to the civil authorities by 
due process of law. The one is a thing of absolute, unavoid- 
able necessit}^, fulfilling the very purpose for which the mili- 
tary is called in aid of the civil authority, and is in accordance 
with usage and precedent, whereas the other is not a matter 
of absolute necessity, is contrar^^ to usage and precedent, and 
should be left to the adequate judicial corps appointed by law 
for that purpose. If this corps is not sufiiciently numerous to 
answer the need of such an occasion as the present, the proper 
remedy is by a temporary increase of its members. 

The true theory of the whole matter — the constitutional 
theory — is, that a President, in putting down a rebellion, per- 
forms little, if anything, more than the functions of a sheriff 
at the head of a posse comitatus. The army and navy, when so 
employed, are, in a legal sense, only a larger and more power- 
ful sort of posse. This was the view taken by the Government 
of Massachusetts during Shay's rebellion, and by "Washington 
during the Pennsylvania insurrection. Washington told his 
army " they should not consider themselves as judges or exe- 
cutioners of the laws, but as employed to support the proper 



A REVIEW OF THE xVRGUMENT, ETC. 223 

autlioritics in tlie execiitiou of them." In other words, that he 
and his army were merely acting in aid of the proper officers 
of the law. Lord Hardwicke said : " The military act on occa- 
sions of resistance to law — not qua military, but simply in aid 
of and in obedience to the civil power, which calls them in." 

2. The Exemption from Control. 

Let the power of arrest be conceded to the President, still 
the power in his hands, as in that of any other officer, must, 
according to theory and uniform practice, be subject to the 
supervision and control of the judiciary. It is so in England. 
Neither the Crown, nor either House of Parliament, enjoys 
any exemption. The world has never known a prouder politi- 
cal body, nor one more jealously vigilant in the preservation 
of its power and prerogative, than the House of Commons; 
^'•et it has been compelled, like the Crown and the House of 
Lords, willingly or unwillingly, to submit to the supervision 
and control of its arrests and imprisonments. The same is 
true in this country, as to both Houses of Congress, as has 
been exemplified in various instances. Indeed, if both Houses, 
with the approval of the President, should so far forget them- 
selves as to unanimously order the arbitrary arrest and im- 
prisonment of the humblest citizen, no la%v;)'er doubts the 
competency of the judiciary to inquire into the legality of the 
imprisonment, and discharge the prisoner. 

From the beginning, our Federal and State Judiciary have 
exercised the power of deciding upon the constitutionality of 
the acts of all officials. This has been done, not merely with 
the uniform acquiescence of all the departments of both sets 
of Government, but with the cordial, unanimous approval of 
the whole nation. It has become the ingrained opinion, the 
heart-cherished belief of every American, as it is of every en- 
lightened Englishman, that the judiciary are the conservators 
of his dearest personal rights as a freeman. His belief es- 
pecially is, that so long as we have an honest, independent 
judiciary, he will be exempt from the despotic, tyrannical 
power of arbitrary arrest and imprisonment — at least, until 
the Legislature, in its wisdom, shall temporarily suspend the 
writ of habeas corpus. His belief is, that whenever the Legis- 



224 A REVIEW OF THE ARGUMENT, ETC. 

lature does that, and confers upontlie Executive the power of 
civil arrest, it will accompany the grant with such safeguards 
and limitations as not unnecessarily to trench upon the liberty 
of worthy citizens, and not leave them farther than cannot be 
avoided, to the arbitrary caprice and malice of the President 
and his subordinates. 

But now we are told that we have to unlearn all this ; that 
we have one functionary in this free Republic who is above 
control, who is not to be controlled by a law which controls 
Kings, Lords, and Commons in England, Congresses and 
Legislatures in America; that our President Lincoln is far 
above such control ; that it would be derogatory to his execu- 
tive independence to submit to such control. "Upon what 
meat does this our magnificent Csesar feed, that he is grown 
so great, so got the start of the majestic world ?" (Appendix B.) 

If the President, when acting in conjunction with Congress, 
is under judicial control as to the constitutionality of his acts, 
surely every principal of analogy and policy require, he should 
also be under such control when acting separately upon his 
mere discretion and authority. If not, then there is some- 
thing in the Constitution which gives him that exemption. 
Where is that clause, phrase, or word ? Messrs. Lincoln and 
Bates say, it is to be found in the clause — " The executive 
power shall be vested in a President." It does not say free 
from control, any more than it says the legislative power 
vested in Congress shall be uncontrolled. If, the Convention 
had contemplated vesting uncontrollable power, in either of 
the two departments, it would have rather been in that highest 
of all the departments, which was to wield the great legisla- 
tive power, as the representatives of the people and the States, 
composed, too, of such numbers as to propitiate popular con- 
fidence, rather than that other department to be filled by a 
single individual, and of whose powers, according to the ad- 
mission of Messrs. Lincoln and Bates, the framers of the 
Constitution had such a " special dread." 

"The executive power shall be vested," etc. What power? 
Not all executive power of the nation — this, they themselves 
admit was not intended. It meant such as was granted in the 
Constitution, or which might be created by law. Because, it 



\ REVIEW OF T U E ARGUMENT, ETC. 22o 

was impracticable to specify or enumerate all executive powers, 
because most of them would depend upon tlie creation, regu- 
lation, and consequent control of Congress — their specifica- 
tion or enumeration was not attempted — and not because of 
any special trust or confidence in the ofiicer. "Where is the 
law granting this power of arbitrary arrest ? There is none 
such ; there can be none such, for it would be a plain violation 
of the Constitution. Unless, indeed, they can make good 
their bold, novel position, that the power is a necessary, indis- 
pensable incident to executive power, of which the President 
cannot be deprived, and in whose exercise he cannot be con- 
trolled by Congress or the judicary. 

It is very doubtful whether the President has any incidental 
or inferential power, properly so called. Or, in other words, 
whether all his powers must not come by express grant. So 
it was held by Calhoun, and other Senators, in the great de- 
bate on Jackson's protest. (See Appendix A.) Indeed this 
seems fully admitted by Messrs. Lincoln and Bates, in that 
part of their argument where they say : " Our Government as 
a whole, even, is not vested with sovereignty, and does not 
possess all the powers of the nation. It has no powers but 
such as are granted by the Constitution. The nation has not 
chosen to delegate all its poAvers to this Government, in any 
or all its branches." When, therefore, a power is claimed for 
either department, a specific grant must be shown. The im- 
plied or constructive powers are amply and well provided for 
by the final clause of the section granting 230wers to Congress: 
" To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other 
powers vested by this Constitution in the Government of the 
United States, or any department or officer thereof.'' There is 
no such clause as to the judiciary or Executive ; neither of 
them is vested with all such other power as may be necessary 
or proper for carrying into execution the powers granted to 
them. As to all auxiliary powers, they must wait for, and arc 
wholly dependent upon, the action of Congress. There is 
scarce a conceivable thing, beyond a call of Congress and the 
reception of Ambassadors, that the President can do without 
the previous sanction of Congress. The clauses, saying — 
29 



226 A REVIEW OF THE ARGUMENT, ETC. 

" The executive power shall be vested in a President, and the 
judicial power in one Supreme Court," etc., mean that beyond 
the express grants contained in the Constitution, whenever 
Congress requires an executive or judicial function to be per- 
formed, the power therefor shall be conferred by Congress on 
those departments respectively. Such has been the uniform 
construction and practice. Messrs. Lincoln and Bates claim 
that the President can, at his mere discretion, arrest any man 
or woman in the nation, and transport him or her to a remote 
quarter, to be kept in secret incarceration during the rebellion, 
though it should last many long years. This, too, he has actu- 
ally done, by many secret arrests in unproclaimed States. In 
place of the open, direct, manly, day-light proceeding of Eng- 
land and America, he is instituting the lettres de cachet and 
bastiles of France, with the secret, midnight searches and 
seizures of the Spanish Inquisition. This power they claim 
for him, because, they say, he is the sole, uncontrollable judge 
of the manner in which he shall exercise his power in putting 
down rebellion. That is, because he has the army, the nav)^, 
and the militia under his control, he may use the power they 
afford to make the arrests and imprisonment, that being, in 
his opinion, a proper aid toward suppressing the rebellion. 
If the unarmed private citizens he chooses to suspect, and ar- 
rest become too numerous and expensive to keep, without too 
great a burthen upon the treasury, why may he not cut their 
throats ? Why may he not take one man's property and give 
it to another ? Why not raise money through forced loans ? 
"Why not destroy or confiscate the property of the suspected ? 
These, in his opinion, would all be most efficient aids in sup- 
pressing the rebellion. The army and the navy furnish him 
ample power to use such aids. Aye, but, they will say, he is 
too good a man so to abuse his discretion. But does not the 
enormities which may be committed under the power they 
claim, prove that he can have no such power. 

It never could have been the intention to entrust such dis- 
cretion to any man. It is contrary to all analogy to derive 
such power by implication. His plan may be a very efficient 
one ; the Constitution and Congress may be very unwise in not 
authorizing him to pursue that plan, but its excellence aifords 



A REVIEW OF THE A R G U .M E N T , ETC. 22 1 

no reason for liis usurping tlie riglit to pursue it. From the 
fact of having the ph^-sical power under his command to en- 
force the plan, he cannot infer a right so to use that power. 
He had as well contend, that because God has given him the 
physical power to murder, therefore he is at liberty to commit 
murder. 

The argument is, that it is the " plain, peculiar duty of the 
President to put down rebellion." They speak of it as an ex- 
officio duty, in the performance of which he has a right to em- 
ploy, at his discretion, any power under his control. The army 
and navy were always under his control. Then why was it 
necessary, b}' the act of 1807, specially to authorize him to use 
them in putting down rebellion ? The truth is, he could not even 
aid in putting down rebellion, by reason merely of any ex-officio 
power. Hence the acts of Congress expressl}- giving him the 
power. So far from its being his " plain, peculiar duty to put 
down rebellion," the duty is peculiar, if to any one, to Con- 
gress, with whom the power rests, and from whom the Presi- 
dent's duty and power in the matter altogether proceeds. 

The argument says : " The insurrection is purely political. 
Its object is to destroy the political Government of this nation, 
and to establish another political Government upon its ruins. 
The President is eminently and exclusively/ political in all his 
principal functions. As the political chief of the nation, the 
Constitution charges him with its preservation, protection, arid de- 
fence. In that character he arrests and holds in custody those 
whom, in the exercise of his political discretion, he believes to be 
friends of, and accomplices in, the armed insurrection. He 
has no judicial powers. The judicial department has no po- 
litical powers, and therefore no court or judge can take cog- 
nizance of the political acts of the President, or undertake to 
revise or reverse his political decision." 

In another part of the argument it is said: "All the other 
officers are required to swear only ' to support this Constitu- 
tion,' while the President must swear 'to preserve, protect, 
and defend it,' which implies the poiver to perform, what he is 
required in so solemn a manner to undertake. Then follows 
the broad, compendious injunction, to 'take care that the laws 
be faithfully executed.' This injunction, embracing as it does, 



228 A REVIEW OF THE A R G U il E ^T T , ETC. 

all the laws, Constitution, treaties, statutes, is addressed to tlio 
President alone, and not to any other department or officer. 
This constitutes him in a peculiar manner, and above all other 
officers, the guardian of the Constitution — its preserver, pro- 
tector, and defender." 

This is not the first time that a great to-do has been made 
by a President over the difference between the form of his 
official oath, and that of other officers, though there is in fact 
no substantial difference between them, the oath to support the 
Constitution being every way equivalent to one to preserve, 
protect, and defend it ; for it cannot be properly supported un- 
less it is preserved, protected, and defended. The difference 
was not intended to indicate, nor was it made because of any 
special trust in the President as a safe guardian, but from an 
opposite reason. It was because of that " special dread " which 
was felt, as admitted, of Presidential power, that an apparently 
somewhat more stringent oath was prescribed for him than for 
the other officers. It was merely intended to make his promise 
more emphatic. The nation must have partaken very little 
of the views of the Convention, if the latter really looked to 
him as the peculiar guardian of the Constitution, for nothing 
can be better known, than that from the very commencement 
the nation looked upon the judiciary as its peculiar guardian, 
and has so regarded them ever since. 

The first attempt to use the oath in this way was made by 
Jackson, in his famous protest, to screen himself from censure 
for his abuse of power in the removal of the deposits. The 
language used gave some plausibility to the idea, that he was 
attempting to derive power from the words of the oath: and it 
was so charged, until his leading friends in the Senate dis- 
claimed for him any such intention. Before the disclaimer 
came. Clay spoke of the imputed attempt as follows : 

" The President begins and ends the protest with a resort to 
his official oath as a source of power which no man before ever 
regarded as granting power. What is the oath ? He is ' to 
preserve, protect, and defend the Constitution.' Taken in their 
largest, most extensive sense, and regarding the oath as a grant 
of power, these expressions may be interpreted to create a 
right and duty, on the part of the President, to preserve and 



A REVIEW OF THE ARGUMENT, ETC. 229 

protect the Constitution, as lie understands it, against all vio- 
lations by whomsoever attempted. If the Supreme Court, 
State Legislatures, or Governors, or even Congress, should 
expound the Constitution contrary to his sense of its meaning, 
he may employ all the means at his command, military and 
civil, to prevent the threatened violation. The consequence 
would be, that we should have but one expounder of the Con- 
stitution in the whole Government, and but one will control- 
ling all its operations. N'ever before did any man regard the 
official oath as containing a grant of power." 

i^Tow we have two men, Messrs. Lincoln and Bates, who do 
not cause it to be merely suspected that they are claiming 
power by virtue of the oath, but boldly, unblushingly, undis- 
guisedly claim the oath as a grant of enormous, overmastering 
power. They say, " the President must swear to preserve, pro- 
tect, and defend the Constitution, which implies the power to per- 
form what he is required in so solemn a manner to undertake." 
Thus, what the intelligent friends of Jackson in the Senate 
were compelled to shrink from and disavow as an indefensible 
folly, these gentlemen have the effrontery distinctly to claim 
as the grant of power so limitless in extent as to aiford ample 
foundation for that military dictatorship which, it is suspected, 
they and others desire to establish over the nation. Dictator- 
ship over Congress, and all the office-seeking part of the na- 
tion, his five hundred millions patronage has already given 
him ; we have yet to see whether his army of five hundred 
thousand men will give it to him over the balance of the na- 
tion. The issue is at least doubtful. "Whilst it remains so all 
true men should struggle while they may, to retard, to prevent 
the rapid march to an unmitigated tyranny. 

Messrs. Lincoln and Bates are men of far too much intelli- 
gence not to know that to claim the oath as a grant of power 
is the merest absurdity. "When such men resort to such means 
to gull the million, as to usurpations, they render themselves 
obnoxious to the strongest suspicion. ISo past reputation for 
integrity gives any exemption to such suspicion. The posses- 
sion of great power is new to Mr. Lincoln. Its intoxicating 
influence is proverbial. He has given no evidence of any de- 
sire to resist that influence, but in everything betrays that easy 



530 A REVIEW OF THE ARGUMENT, ETC. 

virtue wliicli promptly yields without resistance. His past 
reputation for integrity, so far from shielding him from suspi- 
cion, becomes itself suspected. The well-earned reputation for 
political integrity of a Washington and a Madison all com- 
bined in a single President, would not, under such circum- 
stances, shelter him from suspicion. What has this new, 
untried man, the President of a minority, the mere head of a 
sectional party, largely fanatical, to shield him ? The nation 
must look carefully, heedfully to this matter. With a Presi- 
dent wielding five hundred millions of patronage, controlling 
five hundred thousand armed men, and claiming and using 
such enormous, unrestrained power, every patriot should be 
on the alert. 

They further tell us : " The insurrection is purely political." 
"What stuff" is this ? Is not every rebellion equally political ? 
It may do so to characterize it in common parlance to distin- 
guish it from a religious rebellion, or a whisky rebellion. But, 
in a legal sense, there is no such distinction, they, equally with 
this, being a revolt against the political power of the Govern- 
ment, and equally requiring that power to put them down. 

"This insurrection is purely political. Its object is to de- 
stroy the political Government of the nation." Is not the 
object and effect equally to destroy the judicial and eveiy other 
non-political part of the Government ? 

" The President, as the political chief of the nation, arrests 
and holds in custody those who, in the exercise of his political 
discretion he believes to be friends of, and accomplices in, the 
armed insurrection." ISTot those against whom there is proof 
to cause belief, but those whom the President chooses to be- 
lieve, without proof, are accomplices. Are we to imitate the 
base acts of the French revolution, when men were imprisoned, 
if not beheaded, because they were suspected of being suspi- 



cious 



" The judicial department has no political powers, and there- 
fore no court or judge can take cognizance of the political acts 
of the President." This, too, though they say "he is exclu- 
sively political in all his principal functions." That is, in the 
discharge of all his ramified duties and manifold powers, the 
legality of his acts are subject to no judicial test or investiga- 



A REVIEW OF THE ARGUMENT, ETC. 231 

tion. His sic volo, sic jubeo are to stand in lieu of law. If this 
does not startle up the nation, wide awake, what will ? His 
dispersing the members of the two Houses of Congress by the 
bayonets of his armed myrmidons ought not to have any 
greater effect — indeed, not so much. By the power of patron- 
age he holds the majority of Congress already in submissive 
obedience. They are an aid, rather than a hindrance, to any 
usurpation he may choose to make. The liberties, the prop- 
erty, not to say the lives of every man and woman of this 
great nation rest on his discretion ; they can be taken away at 
his arbitrary will ; they are only enjoyed by his permission. 
"With a submissive Congress, and an impotent judiciary, what 
are any man's rights worth ? what guarantee has he for them ? 
This is no attempt at fictitious alaiTQ, at an improbable, non- 
presumable state of things. It already exists. Men have been 
taken from their beds at the dead hour of night, secretly in- 
carcerated in remote States, and their friends cannot learn even 
the alleged cause of arrest. These arrests, too, made in States 
against which there is no proclamation of rebellion, and none 
properly can be made. Wlien commanded by the nation to 
produce a prisoner before the Chief Justice and show the cause 
of his detention, he denies the power of the nation, or which 
is the same, the power of the law to send such a command. 
He authorizes his military subordinates to proclaim and en- 
force martial law over the people of States not proclaimed to 
be in rebellion. That is, he authorizes those subordinates to 
substitute their will in place of law, and to govern those peo- 
ple by their arbitrary will. He directs or permits those subor- 
dinates to not merely violate the freedom of the press, but 
actually to suppress entirely the publication of newspapers. 
These are some only of the initiatory steps — what is to follow 
no man can tell. 

In arresting and imprisoning he exercises political power, it 
is said, and therefore no court or judge can take cognizance of 
his acts. The House of Representatives has none but political 
powers, yet when it imprisons a citizen it has to submit to a 
judicial order for his enfranchisement. If an}'thing can prop- 
erly be called purely political power, it is the legislative power 
of Congress. Yet if, by unanimous vote, with the President's 



232 A REVIEW OF THE ARGUMENT, ETC. 

approval, Congress passes an act to arbitrarily imprison or 
otherwise punish a citizen, the judiciary can take cognizance, 
is bound to take cognizance, and release the prisoner in des- 
pite all the dignity and power of Congress. This not only every 
lawyer, but every tolerably informed citizen well knows. There 
is, therefore, no myth or virtue in a political power, merely 
because it is political, to deprive a citizen of his constitutional 
right to be protected against its unlawful exercise to his in- 
jury. 

There are a certain class of executive powers, such as ap- 
pointing to office, which are purely discretionary, which judges 
and books of high authority, for the sake of classification, de- 
nominate, rather inaccurately, political powers. For though 
all such power may be political, yet all political power is not 
purely discretionary. The distinction, therefore, is properly 
between -powers purely discretionary^ as the appointing, the veto, 
and the treaty-making power, and those which are not. The 
former are not, whilst the latter are, subject to judicial control 
without reference to the fact whether the power be political or 
otherwise. There is another rule, which, though it may not 
cover the whole ground, is sound and safe as far as it goes. 
That is, all ministerial, executive acts, so far as they trench 
upon individual right, are subject to judicial control. 

According to the theory of our Government, every right 
must have a remedy for its enforcement, and every wrong a 
redress. 

As said by the Supreme Court in Marbury vs. Madison, 
1 Cranch, 162 : " The very essence of civil liberty certainly 
consists in the right of eveiy individual to claim the protection 
of the laws whenever he receives an injury. One of the first 
duties of Government is to afford that protection. In Great 
Britain, the King himself is sued in the respectful form of 
petition, and he never fails to perform the judgment of the 
court." 

" The Government of the United States has been emphati- 
cally termed a Government of law, and not of men. It will 
certainly cease to deserve this high appellation, if the laws 
furnish no remedy for the violation of a legal right." 

" Is it to be contended that heads of departments are not 



A REVIEW OF THE ARGUMENT, ETC. 233 

answerable to the laws of their country?" * * * "What is 
there in the exalted station of the officer which shall bar a 
citizen from asserting, in a court of justice, his legal rights, or 
shall forbid a court to listen to his claim ? If one of the heads 
of department commits an illegal act, undercolor of his office, 
by which an individual sustains injury, it cannot be pretended 
that his office alone exempts him from being sued or compelled 
to obey the judgment of the law." 

Hence the inference, that while the President is merely 
passive, only failing to exercise an executive power w^hose 
exercise rests in his discretion, or exercises it without injury 
to private right, the court can take no cognizance ; but when 
the power is brought into action, and an individual thereby 
illegally sustains injury, the courts may give him redress, 
though the President himself commanded the act to be done. 
Thus the acts of the President and his subordinates, in the 
management of soldiers, though a power accompanied with 
much discretion as to the mode of exercise, yet being minis- 
terial, if unlawfully used to the injury of a citizen, the courts 
can give him redress. So where the President, in the exercise 
of his discretion, as to the mode of managing the military 
force in putting down a rebellion, chooses to use part of it in 
the illegal arrest and imprisonment of a citizen, the courts 
must give relief. This, too, though (as surmised by ISIessrs. 
Lincoln and Bates) the President should sink the dignity of 
his office so low, as himself personally to become the catch- 
pole and jailor. 

As said by Blackstone, " the law is no respecter of persons ; 
but in England, for fundamental reasons of State policy, this 
is taken in subjection to the maxim that the king can do no 
wrong, and no mandate can be directed personally to him. "We 
have no such maxim or legal reason why a judicial mandate 
should not go against him as well as any other officer. But 
from reasons of comity to a co-ordinate department, and of 
respect for the exalted station, the courts will refrain from 
sending such mandate as long and as far as duty will permit. 
That his station gives him legal exemption from judicial coer- 
cion is an idle pretence. 'No one knows better than Messrs. 
Lincoln and Bates, that he can be sued for debt and made to 
30 



234 A REVIEW OF THE ARGUMENT, ETC. 

pay it ; that he can be sued for an article of personal property 
and made to deliver it up from his veiy clutch in his oAvn 
palace ; that if the law of the District of Columbia allows im- 
prisonment for debt, he may, under a judgment of the Federal 
Court there, be incarcerated for its non-payment, with no legal 
power in the land to release him Avithout payment ; and fur- 
ther, that in a State Court he can be tried for any crime, and 
even hung for murder. How perfectly preposterous, then, the 
pretension, that the legality of an arrest or imprisonment by 
one of his subordinates, shall not be judicially inquired into 
because done by his order. 

This is a most magnificent President we have. He not only 
denies to the judiciary all control over his official acts, but 
denies it to Congress also. This, too, though nearly all the 
executive power he has — much the major part, at least — he 
derives through Congress, who could repeal it away from him 
to-morrow. Nor is this all. He claims that he is responsible 
for his official conduct to the Court of Impeachment alone ; 
yet, when called upon by the grand inquest, the House of Rep- 
resentatives, which has the sole power of impeachment, to 
say why he arrested and imprisons certain citizens, he refuses 
to answer. He refuses to answer at the nation's command, 
given through its Avrit of habeas corpus, and refuses to answer 
at the request of the nation's representatives, or at least those 
who call themselves such. Verily, if the nation only had real 
representatives, he would soon be shorn of his lofty preten- 
sions, his vaulting ambition controlled, and he made to know 
that no man in tJiis cauntry is above the law. (See "Webster's 
strictures on the one-man power. Appendix C ; and also what 
Kent and other judges of the Supreme Court of l!^ew York said 
as to a military commander's exemption from obedience to the 
writ of habeas corpus, Appendix D.) 

Blackstone, 1 Com., 135, cites the statute 16, Car. 1, which 
says : " If any person be restrained of his liberty by order of 
any illegal court, or by command of the King's majesty in person, 
or by warrant of the council board, or any of the priv}^ coun- 
cil, he shall have a writ of habeas corpus to bring his body be- 
fore the court, who shall determine whether the cause of his 



A REVIEW OF THE ARGUMENT, ETC. 235 

commitment be just, and do as to justice shall appertain." Upon 
this he comments as follows : 

" Of great importance to the public is the preservation of 
personal liberty ; for if once it were left in the power of any, 
the highest magistrate to imprison, arbitrarily, whomever he 
or his officers thought proper, there would soon be an end of 
all other rights and immunities. Some have thought that 
unjust attacks even upon life, or property, at the arbitrary will 
of the magistrate, are less dangerous to the commonwealth 
than such as are upon the personal liberty of the subject. To 
bereave a man of life, or by violence to confiscate his estate, 
without accusation or trial, would be so gross and notorious 
an act of despotism as must at once convey the alarm of tyranny 
throughout the whole kingdom : but confinement of the per- 
son by secretly hurrying him to jail, where his sufferings are 
unknown or forgotten, is a less public, or less striking, and 
therefore more dangerous engine of arbitrary government. 
Yet sometimes, when the State is in real danger, even this 
may be a necessary measure. But the happiness of our Con- 
stitution is, that it is not left to the executive power to deter- 
mine when the danger of the State is so o-reat as to render this 
measure expedient : for it is the parliament only, or legislative 
power, that can authorize the Crown, by suspending the habeas 
corpus act for a short or limited time, to imprison suspected 
persons without giving anj^ reason for so doing." 

As before remarked, the suspension in this country gives no 
such power to the Executive ; because, unlike the King, it has, 
ex-officio, no such power of arrest ; but, if Congress wishes to 
do so, it must confer the power on the President, as was 
attempted by the bill which passed the Senate, and was rejected 
by the House in 1807. On that occasion, Mr. Dana, a distin- 
guished member of the House, from Connecticut, a jurist and 
a statesman, said : " This bill authorizes the arrest of citizens 
not merely b}' the President, but by any person acting under 
him. I imagine this to be wholly without precedent. If 
treason were marcMng to force us from our seats I loould not agree 
thus to destroy the fundamental principles of the Constitution^ and 
commit such an act of despotism and pusillanimity.'' Chief Jus- 
tice Taney has gone a step further than this, and decided, or 



236 A REVIEW OF THE ARGUMENT, ETC. 

at least intimated, in the Merriman case, that Congress can con- 
fer no power of arrest upon the President. If by " due pro- 
cess of law" the Constitution means that every prosecution, in 
all its stages, even the incipient one of arrest, must be con- 
ducted under judicial authority, then the intimation is clearly 
right, for nothing is plainer, or better settled, than that Con- 
gress can confer no judicial power upon the Executive. That 
such is the true meaning of " due process of law," is inferable 
from the clause saying, " no warrant shall issue but upon pro- 
hable cause, supported by oath, and particularly describing the 
person to be seized. Now, what is probable cause ? and what 
affidavit will support the allegation of probable cause ? and 
what is particular description of the person? are all questions 
to be decided, and would seem by all analogy and precedent 
to require a judicial decision. Besides, the uniform practice 
is to that effect. If, then. Congress cannot expressly grant the 
power, the President cannot possibly have it by any process 
of construction or intendment ; for all his power, being derived 
through the acts of Congress, it would be preposterous to con- 
tend, that, in authorizing him to use the army in putting down 
rebellion, a power can be implied to use the army in a manner 
which Congress could not expressly authorize. On the con- 
trary, he takes the trust on the implied understanding that his 
discretion, as to the mode of using the power, shall not extend 
beyond what Congress could authorize, that being manifestly 
beyond its probable intention, which intention is his impera- 
tive guide and law. 

3. The Constitutional Prohibitions. 

First among these comes that which says : " The privilege 
of the writ of habeas corpus shall not be suspended unless 
when, in case of rebellion or invasion, the public safety may 
require it." 

It would be an act no less of presumption than supereroga- 
tion, for any man to attempt to aid what Chief Justice Taney 
has said in the Merriman case, to prove that the whole power 
of suspension is with Congress, exclusively with Congress. 
His opinion will be cherished not merely as an enduring monu- 
ment of official fidelity, but as a proud evidence of octogena- 



A REVIEW OF THE A R C. U M E X T , ETC. 237 

riau ability. It will be clierisbed by tlie profession as a liigli, 
finished specimen of luminous, convincing judicial disquisi- 
tion. Messrs. Lincoln and Bates have manifested only proper 
prudence, by shrinking from all attempt to answer what is so 
unanswerable. They content themselves with a feeble effort 
to dodge round it. 

They admit that the power to prohibit the issuing of the 
^Tit can only be exercised by Congress, because it is a quasi 
repeal of a statute, which is legislation. With this admission 
it is difficult to understand even what they mean by the meta- 
physical sophistr}' with which they attempt a distinction be- 
tween the power to issue the writ and the privilege of enjoying 
its protection. The prohibition was not made for the sake of 
the judiciary, but for that of the citizen. It is nothing to the 
judiciary to have the power, but it is all important to the citi- 
zen that the power should be kept in operation for his benefit. 
It is immaterial to him how he is deprived of the protection, 
whether by the Legislature or the Executive. The injury to 
him is the same. It is incredible, therefore, to common men 
and mere common sense, that the Legislature should be so 
carefully prohibited from taking away his protection, whilst 
the Executive was left free to disregard his right. This the 
more especially when it is remembered, that it is against ex- 
ecutive officers that the writ is most generally, indeed almost 
exclusively, used ; for it is they who most frequently make 
illegal, arbitrary arrests ; and therefore it is they, in particular, 
more than all others, against whom he needs protection. They 
are bold, not to say desperate, who attempt to convict the Con- 
stitution of such an absurdity — not merely a self-contradic- 
tion, but a sort of suicidal self-nullification. It will be in vain 
to attempt to convince the nation, that the makers of that 
Constitution were such mal-experts, that, whilst carefully pro- 
hibiting Congress from taking away from the citizen his judi- 
cial protection against Executive oppression, the Executive 
itself should be left free to oppress him at pleasure. Congress 
and the Executive combined can infringe the protection under 
certain prescribed conditions, yet the Executive alone is left 
to do it upon his own untrammeled discretion. If he was left 
free to oppress, why trammel Congress with restriction ? This 



238 A REVIEW OF THE ARGUMENT, ETC. 

is a mere lust of power run stark macl ; so blinded by its eager- 
ness for usurpation that it cannot see the most palpable ab- 
surdity. 

If, according to the concession, the writ must issue, why 
shall it not be obeyed ? It carries the imperative command 
of the law. Who shall dare disobey ? Who, in this country, 
is above the law ? "Who enjoys that dispensing prerogative 
of suspending or silencing the law, for the attempt to exercise 
which, an English King lost his head ? 

If either department, as between the judiciary and the Ex- 
ecutive, could properly be allowed, by mere intendment, a dis- 
cretion as to the suspension of the privilege of the writ, it 
would seem to be rather that department which has its custody 
and control, than that which is not so trusted, has no control 
over its issue, and against whom, in ninety cases out of every 
hundred, it ordinarily does issue. Yet, it is agreed on all 
hands, that the judiciary has no such suspending power. Until 
the advent of Messrs. Lincoln and Bates, the opinion was 
equally unanimous, that the Executive has no such power. 
They have not adduced, nor can they adduce any respectable 
legal opinion to the contrary. 

But yield the President the power of arrest, with the dis- 
cretion to suspend the privilege of the writ, still, unless he 
make the arrest in person, he must issue some sort of warrant 
or order, verbal or written ; and the Constitution says none 
such " shall issue but upon probable cause, supported by oath, 
and particularly describing the person to be seized." That old- 
time engine of tyranny, general warrants, will not do. There 
must be a special warrant for each case. It matters not who 
has the power of arrest, the Constitution is imperative, that 
no warrant — that is, no order — shall issue except in the 
manner prescribed. 

If, as claimed, the President's discretion over the privilege 
of the writ, and his power of arbitrary arrest come by reason 
of the great confidence reposed in him by the Constitution, 
then this trusted power is personal, and peculiar to himself. 
He can no more transfer or deputize this high discretion, than 
Congress can deputize its legislative, or a court its judicial 
power. The exercise of the discretion and power is unavoid- 



A REVIEW OF THE ARGUMENT, ETC. 239 

ablj thus restricted to the President ; and wlien so restricted 
lie will confess that it is not worth contending for, as it can 
render little or no aid in putting down rebellion. 

"IN'o person shall be deprived of liberty without due process 
of law." It has been decided in numberless instances, by 
Federal and State Courts, that "process of law" means ju- 
dicial process. It has also been uniformly so held by all 
statesmen. Now, the President, having no judicial power, 
nor power to issue or command the issue of any judicial pro- 
cess, how can he arbitrarily deprive a citizen of liberty — that 
is, imprison him — by his own order, or any mere executive 
process whatever ? The pretension is absurd. The Constitu- 
tion makes no exception of time or occasion when this rule 
need not be observed ; it is laid doA^ai for uniform, constant 
observance at all times, and under all circumstances. This 
greatly strengthens the argument against the right of Congress 
directly to confer the power to arrest upon the President. It 
is absolutely conclusive against giving him the power to im- 
prison. For whatever plausibility there may be in the idea, 
that mere temporary arrest, for the purpose of being carried 
before the proper functionary, is not depriving a man of his 
liberty, within the meaning of the Constitution ; yet, to im- 
prison him, is certainly to so deprive him. If one of the ob- 
jects of the imprisonment be to prevent his access to such 
functionary or to his constitutional guardian, the court, it be- 
comes a deprivation of liberty of the most flagrant, indubitably 
unconstitutional character. But Mr. Lincoln docs not pretend 
that his arbitrary arrests and imprisonments have been or will 
be made with the exclusive view of brino-ino; the arrested to 
trial, but boldly, frankly avows that it is done for the purpose 
of rendering the suspected " powerless for mischief until the 
exigency is past;" that is, until this probably long war is over. 
The Constitution tells Mr. Lincoln plainly, emphatically, that 
he shall have no power thus to tyrannize over his fellow-citi- 
zens, that he shall not so imprison them ; but he says he will. 

This rule, as to imprisonment, being so imperative, and 
without exception, it would seem to apply even during a 
temporary suspension of the wi'it of habeas corpus, so that there 
could not be even then a legal imprisonment, without some 



240 A REVIEW or THE ARGUMENT, ETC. 

sort of judicial order. However mucli this construction may 
seem to some persons needlessly to hamper the efficiency of 
the Government in putting down rebellion, there need he no 
surprise at its being so arranged, for some of our wisest states- 
men were earnestly opposed to allowing anybody, even Con- 
gress, to suspend the writ. Many eminent writers in England 
and Europe have expressed the opinion that its suspension 
should never be allowed in a Republic. The argument ah in- 
convcnienti might rightfully induce Congress, during a suspen- 
sion, to consider a mere arrest as a quasi ministerial act, such 
as the Executive might constitutionally be empowered to per- 
form ; but whenever it comes to formal imprisonment, for the 
mere purpose of rendering a freeman " powerless for mischief," 
then the judicial functions must be brought into requisition. 
This may cause some inconvenience, some diminution of effi- 
ciency, as it certainly will require a large increase of deputy 
marshals and subordinate judicial officers ; but better, far bet- 
ter that inconvenience and expense, than trust arbitraiy, tyran- 
nical power in the hands of any man. So our fathers thought ; 
so let us continue to think and act ; so let us make the Presi- 
dent know and act. 

The argument says that Congress has the power, not the 
right, at any time to repeal the act giving the courts power to 
issue the writ, but attempts no use of the fact in illustration 
of the President's assumed power, and therefore the matter 
needs no comment. But it may be well to say that, whilst 
this is true, it is equally true that such repeal would be a gross 
abuse of power, being contrary to the spirit and meaning of 
the Constitution, wdiich are as much to be observed as its letter. 
For, incontestably, the Constitution contemplates that Con- 
gress shall always furnish a writ for the protection of citizens, 
except when, in cases of invasion or rebellion, it may think 
public safety requires a suspension of that protection. Every 
sound statesman and lawyer will agree, that a wilful violation 
of the manifest spirit of the Constitution is morally as bad as 
an infraction of its plain letter. 

The argument further says : " The President is a civil magis- 
trate, not a military chief," and because of "the prevailing 
sentiment that the military ought to be held in strict subordi- 



A REVIEW OF THE ARGUMENT, ETC. 241 

nation to the civil power," tliey contend tlie President was 
made commander-in-cliief of the army, etc. " To call the 
judiciary the civil power, and the President the military power, 
is at once a mistake of fact and an abuse of lanffuag-e." All 
this is a gross blunder. So gross is the blunder, that it is in- 
comprehensible how it could be committed by gentlemen of 
intelligence. If the commander-in-chief of the military is not 
to be understood as included when speaking of the whole 
"military power," in the name of common sense, who can be 
included ? The phrase, " the military in subordination to the 
civil power," is borrowed from English political enactments, 
law writers, and historians. In that country, it has been uni- 
formly understood not to class the King with the civil, but the 
military power. The military being always in strict subordi- 
nation to him, there would be no significance in the phrase, 
if it referred to his as part of the civil power. By " civil 
power," is meant the law administered by its own appropriate 
functionaries — the judiciary. In other words, the distinct 
intention is, that when the power of the sword and the power 
of the law come in conflict, the sword must yield. This is 
well illustrated by our State Constitutions, which, whilst mak- 
ing the Governor commander-in-chief of the military, adopt 
this phrase into their bill of rights, saying : " The military 
shall always be held in exact subordination to the civil power," 
or using some similar language. Surely, so much pains would 
not have been taken to do this, if the Governor was intended 
as part of that civil power, when the Constitution had already 
placed the military in subordination to him as its commander- 
in-chief. 

The result of the discussion is — first, the President has, ez- 
offieio, no power of arrest, and none being conferred by Con- 
gress, he can have none. Second, but even if he has such 
power, no matter how derived, it must be exercised in the 
manner prescribed by the Constitution ; that is, there must be 
in each case probable cause sustained by oath, and an order 
of arrest particularly describing the person to be arrested, 
which cannot be issued by deputy. Third, the President has 
no power to suspend the pri\dlege of the writ of habeas corpus, 
that power resting in the discretion of Congress alone, conse- 
31 



242 A REVIEW OF THE ARGUMENT, ETC. 

quently even if this power of arrest and imprisonment were 
conceded, still the legality of the mode in which it is exercised 
is subject to judicial investigation ; and to this end, for the 
necessary protection of the right of citizens, he, like every 
other officer, is subject to the control of the law through its 
appointed functionaries. 

Here might appropriately close a mere review of what pur- 
ports to be the opinion of the Attorney-general, but which 
carries with it ample grounds for suspicion that it may not be 
an opinion, but only the argument of an official advocate. But 
this is not intended as such mere review, but as a comment on 
that and analogous topics. Among these is that kindred one 
of martial law, which, for abundant reasons, no doubt, both the 
President in his message, and the Attorney-general in his opin- 
ion, carefully abstain from saying one word about, though the 
authority to declare martial law" issued cotemporarily with that 
to suspend the writ, and, of the two, is much the major usurp- 
ation of power. But the President's obsequious partizans in 
Congress have not been so abstinent or prudent. Some of them 
infer the uselessness of the protection of the ^\Tit, in the pre- 
sence of assumed power to declare martial law, whilst others 
argue in favor of the latter power from the assumed power 
over the writ. The subject, therefore, cannot be properly dis- 
posed of without some notice of the claimed power to declare 
martial law. But, as this has already been done by the writer, 
at some length, in a printed pamphlet, what is now to be said 
will be as brief as practicable. 

4. Martial Law. 

The books furnish no better definition of martial law than 
that given in Jacobs's Law Dictionary : " The law of war that 
depends upon the just but arbitrary power and pleasure of the 
king or his lieutenant. He useth absolute power, so that his 
word is law." "A distinction should be made between mar- 
tial law, as formerly executed, entirely at the discretion of the 
crown, and unbounded in its authority either as to persons or 
crimes, and that at present established, which is limited as to 
both." In other words, martial law is the will of the military 
commander who proclaims it. 



A E E V I E W OF THE ARGUMENT, ETC. 243 

As agreed on all hands, it lias been forever abolished in Eng- 
land since the petition of right, has not been known there for 
near two centuries, has been held by Lord Loughborough to 
be incompatible with the genius of the English Constitution, 
and, all authorities concur, can only be established by the om- 
nipotent power of Parliament. 

Are we liabl e to such a law in this country ? Can our free 
citizens be made the slaves of a militaiy despot ? That is the 
question. Our Generals have been authorized by President 
Lincoln, so far as he could authorize, to proclaim martial law, 
and General Fremont has actually proclaimed and is now en- 
forcing it over some hundred and sixty thousand of our coun- 
trpiien at St. Louis ; this, too, without any proclamation of 
rebellion against that city, or against the State of Missouri. 
Any State adhering to the Union is equally liable to be treated 
in the same way. It is, therefore, a pressing question of the 
greatest moment to the whole nation. 

As far as can be ascertained, and as believed, there w^as no 
attempt to establish martial law during the seven 3'cars' war 
of the Revolution. Nor was there any during the three years' 
war of 1812, except that of Jackson, which, as before stated, 
was first condemned as illegal and void by an intelligent court- 
martial, then by the District Court of the United States, and 
afterward by the Appellate Court of Louisiana. 

Judge Bay, of the Appellate Court of South Carolina, thirty 
or forty years ago decided in the same way, saying: "K by 
martial law is to be understood that dreadful system, the law 
of arms which in former times was exercised by the King of 
of England and his lieutenants, when his word was the law 
and his will the power by wdiich it was exercised, I have no 
hesitation in saying that such a monster could not exist in this 
land of liberty and freedom." 

When the cpiestion of the refunding of Jackson's fine was 
before Congress, the subject was referred by each House to its 
Committee on the Judiciary. The report of the Committee 
of the House of Pepresentatives was written by a member 
who has since obtained such an enviable reputation for pure, 
enlightened, unimpassioned statesmanship, as Senator Pearce, 
of Maiyland. The report speaks thus : 



244 A REVIEW OF THE ARGUMENT, ETC. 

" Your committee do not tliink that the military eommauder 
has any rights or duties paramount to the Constitution, from 
which he derives his commission. If such officers do possess 
powers above the Constitution and the law of the land, of the 
extent and application of which they, and they alone may 
judge, and if the Constitution and law cannot protect the citi- 
zens against the exercise of such extraordinary, undefined and 
undefinable powers, then is our frame of government a solemn 
mockery — then are our bills and declarations of rights idle and 
unmeaning forms, and the boasted liberty of an American 
citizen is but an empty sound. 

" It would be still more monstrous if, besides suspending the 
habeas corpus and detaining a citizen, it should be claimed to 
try and execute him by martial law, which is not tolerated in 
England, nor in any country except where despotism reigns. 

" This doctrine of necessity, which at one time is said to ab- 
rogate the Constitution and all law, and at another to justify 
the invasion of a part of freemen's privileges that the rest may 
be preserved, has long been known as the tyrant's plea. It is 
not tolerated in England, no matter what may be the distem- 
per of the times ; and while it is palpably incompatible with 
the principles of American freedom, it is also directly met and 
expressly denied by constitutional provisions. 

" The country may, in consideration of great services, and 
upon atonement made, excuse the individual who has violated 
these principles ; but whenever they yield submissively to the 
invasion of these rights, whenever they are prepared to admit the 
tyrant's plea, they are fit only to he tlie tyrant's slaves." 

A briefer report from the Senate's committee, written by 
Mr. Berrien, condemned martial law with equal emphasis. 

But now we have the Rhode Island case, 7 How., which is 
claimed to recognize the right to establish martial law in this 
countr3^ It may be said of that case, or at least, of the opinion 
delivered in it, without fear of contradiction from any intelli- 
gent lawyer, that it is crude, ill-considered, and most loosely 
expressed. 

The question presented for decision was the validity of a statute 
of the Legislature of Rhode Island, which professed to "estab- 
lish martial law over the State," and whose validity had been 



A REVIEW OF THE ARGUxMENT, ETC. 245 

recognized by its courts. The Supreme Court decided that 
this being a matter of pure local statute law, its decision, 
according to uniform usage, must conform to the decision of 
the local courts. This being decided, there was nothing left 
in the case, and the remainder of the opinion is mere obiter dic- 
tum. So far as the obiter dicta of Chief Justice Taney in de- 
livering the decision may be construed into an implied conces- 
sion that Congress may establish martial law, they are in direct 
conflict with his recent decision in the Merriman case. But it 
is due to him to say that there is not the slightest intimation 
of any such power in the President or other military com- 
mander, and the recognition of the power in the Rhode Island 
Legislature was, no doubt, caused by the fact of tlie people of 
that State living then under the old colonial charter, without 
the protection of a written Constitution or bill of rights. From 
this fact, he and the State Court most probabl}^ inferred a power, 
like that of the omnipotent Parliament, to establish martial law. 
He seems to have labored under some loose impression that 
there was some other and different kind of martial law in- 
tended by the Rhode Island Legislature than that formerly in 
use in England, known under the significant definition of the 
will of the "military commander" — something between that 
and the law of Congress, or of a State, for the government of 
the army or militia ; for he says : " ^o more force, however, 
can be used than is necessary to accomplish the object; and if 
the power is used for the purposes of oppression, or any injury 
wilfully done to person or property, the party by whom, or by 
whose order, it is committed would undoubtedly be answera- 
ble. There is nothing of arbitrary power in this, but the re- 
verse. It is nothing but the kind of power which the military 
may lawfully use, and must use, when called in aid of the civil 
authority to suppress rebellion, and entirely within the limits 
of the military law as prescribed by Congress. Again, he says : 
" We forbear to remark upon the commissions anciently issued 
by the king to proceed against certain descriptions of persons 
by the law martial. These commissions were issued by the 
king at his pleasure, without the concurrence or authority of 
Parliament, and were often abused for the most despotic, op- 
pressive purposes. They were finally abolished and prohibited 



246 A REVIEW OF THE ARGUMENT, ETC. 

by tlie petition of right. But they bear no analogy in any 
respect to the declaration of martial law by the legislative 
authority of the State, made for the purpose of self-defence 
when assailed by an armed force." 

This shows he must have labored under the delusion re- 
ferred to ; yet he could scarcely have committed a greater 
mistake. There is not, never was, any such intermediate kind 
of martial law. The books furnish no trace or intimation of 
anything of the kind. The old martial law is the only one 
known or ever heard of. Consequently that and none other 
must be what is meant whenever martial law is proclaimed by 
statute or military order, under that name or designation. 
Consequently, also, Avhat he seemingly makes the court say 
can have no bearing on the matter under discussion, except as 
a strong intimation against the power of even an unrestrained 
Legislature to establish the old, the only martial law in this 
country. 

The decision out of the way, how then does the matter 
stand, on principle and analogy. To declare martial law is to 
make law. It is to make law of the very highest character ; 
for it supersedes all other, and, in effect, repeals. all other law, 
and puts this law in their place. E"ow, to make law or repeal 
law is legislation, and the whole legislative power of the na- 
tion, so far as confided to anybody, is granted exclusively to 
Congress. This argument alone, if there were no other, would 
be perfectly conclusive against the power of the President to 
declare martial law. For nothing is better established on prin- 
ciple and by authority than that the President cannot legislate 
— ^that is, make law. To permit him to do so would pervert 
and subvert all the great purposes for which the Government 
was so carefully divided into separate departments. Conse- 
quently, if martial law can be established at all, it must be 
done by Congress. Can Congress do it ? 

That it cannot is obvious. First. Because the Constitution 
says : " The right of the people to be secure in their persons, 
houses, property, and effects against unreasonable searches and 
seizures, shall not be violated ; and no warrant shall issue but 
upon probable cause, supported by oath or affirmation, and 
particularly describing the place to be searchec\ and the person 



A REVIEW OF THE ARGUMENT, ETC. 247 

or tiling to bo seized." Every one of these rights thus intended 
to be guarded are infringed by the exercise of martial law. 
This must be so, for otherwise there could be no reason for 
martial law, the civil authority already having ample power 
within those limits — unless, indeed, martial law is intended to 
try and punish offences by some speedy, summary method not 
known to law. 

This brings us to objection Second. Because the Constitution 
says : " No person shall be deprived of life, liberty, or property, 
Avithout due process of law." That is, by the law of the land, 
under the administration of its assigned functionaries — the 
judiciary. 

TJiird. Because the Constitution guarantees to an accused a 
speedy public trial by jury, to be informed of the nature and 
cause of the accusation, to be confronted with the witnesses 
against him, to have compulsory process for his witnesses, and 
the assistance of counsel, all of which martial law dispenses 
vdth and disregards. K it did not, the civil law is sufficient, 
and there can be neither need or use for proclaiming the other. 
The utmost that the usages of martial law allow is a drum-head 
court-martial, and even for that much the accused is dependent 
upon the discretion of the commander. He can dispense with 
all modes of trial, and order an accused to be shot for anything 
he chooses to call an offence \vithout any investigation what- 
ever. 

These guarantees of the Constitution are without exception 
as to times of public danger, or for any supposable case of 
State necessity, and are, therefore, to be always observed under 
all circumstances. Congress has no discretion to disregard 
them. They clearly prevent Congress from declaring martial 
law. This construction is fortified by the denunciation of 
martial law in the Declaration of Independence and its express 
prohibition in all the State Constitutions, which, being general 
grants of all power, with specific exceptions or prohibitions, 
were supposed to require, out of abundant caution, the special 
inhibition of martial law. But the Federal Constitution con- 
tains only a grant of specified powers, with an express reser- 
vation of all power not granted, and, there being no grant of 



248 A REVIEAY OF THE ARGUMENT, ETC. 

power to establisli martial law, there was no need for its spe- 
cial prohibition. 

But concede the power, can it be transferred to the Presi- 
dent ? No more than Congress can divest itself, by transfer, 
of any other or all its legislative power. As before said, to 
declare martial law is legislation, a class of power which he 
cannot exercise — one which, according to the fundamental 
division of the Government into departments, is denied to him 
and confined to Congress. 

Still there is necessity. State necessity, the law of self-de- 
fence, self-preservation, inherent in all Governments, which, 
it is said, Constitutions cannot take away — a higher law, which 
over-rides all Constitutions. There is no reasonins^ with hio-her- 
law men. They are a law and a reason to themselves. To 
those not of that class a short argument \vill be sufficient. 
"Whatever force there may be in the argument that Govern- 
ment cannot rightfully take from an individual the necessary 
right of self-defence, still it cannot be denied that Government 
has the power to impair that right most materially. For in- 
stance, it has the power, not the right, to deny the right of 
killing in self-defence. With much greater propriety can a 
nation, when instituting Government — that thing of its ovni, 
for its own benefit, in which no other person has a distinct, 
separable interest — limit its bantlings, means, and powers of 
self-defence. Whether wise or unwise, it has the power, the 
just power, of saying : Let the Government perish rather than 
it shall do certain things. The perfect equity of such a decla- 
ration is apparent as soon as we reflect how disputable is what 
is and what is not necessary to Government self-defence. The 
nation has a perfect right — nay, it is an imperative duty of 
self-defence, of self-preservation, to judge all this matter in 
advance, and say what the Government may or may not do at 
any time and under all circumstances. This is perfectly indis- 
pensable to the preservation of civil liberty, and, however it 
may be in other countries, the preservation of civil liberty was 
the great paramount object with the founders of our Govern- 
ment ; because in its preservation was deemed to be involved 
the happiness and prosperity of the nation. Unless, then, he 
and others thinking with him can prove to the satisfaction of 



A REVIEW OF THE ARGUMENT, ETC. 249 

others tliat they liave more wisdom tlian the nation, together 
with more interest in the preservation of its Government, there 
cannot be, even theoretically, any just claim to a higher law 
which shall override the Constitution and limit the nation's 
rightful power in this particular. 

" There is no life for liberty but in the supreme and abso- 
lute dominion of law. This lesson is written in letters of 
blood and fire, all over the history of the nations. It is the 
moral of the annals of republics ever since their records began. 
"Wlienever men have thought great thoughts, and died brave 
death for human rights, its everlasting truth has been pro- 
claimed and sealed with patriot blood." 

But suppose there was, which there is not, a proper analogy 
between the right of individual self-defence and that of Gov- 
ernment self-defence. Let us see how the matter stands in 
that view. Before an individual can take the law in his own 
hands and kill in self-defence, he must be driven to the wall. 
The danger must be immediate, imperative of death or griev- 
ous bodily harm, with no other means of probable escape, be- 
fore he can take life in self-defence. Now will it be seriously 
contended that this great nation of twenty millions is in the 
presence of such immediate, imperative danger, is so driven 
to the wall, that the incarceration of some fifty or a hundred 
suspected men in Maryland or Missouri, or the declaration of 
martial law, is absolutely, indispensably necessary to its preser- 
vation ? Yet that proposition, absurd as it is, must be proven 
before the higher law doctrine can be brought to bear, or be- 
fore the tyrant's plea can have any application. It is even 
doubtful whether arbitrarj^ arrest and' martial law in a country 
like this, of sparse, scattered population, are any material aid 
in suppressing rebellion. It is also doubted whether they can 
be such aid in the defence of an open, unfortified city like 
Baltimore or St. Louis, having a thousand points of ingress 
and egress, and which has to be defended from without and 
not from within. But concede that they are a material aid, 
still it cannot be contended that they are, like the knife or the 
pistol used in personal self defence, indispensably necessary — 
that they afibrd the onh^ probable means of escape from its 
danger. Xot being so indispensably necessary, they do not 
32 ' " 



250 A REVIEW OF THE ARGUMENT, ETC. 

fulfil the conditions of tlie doctrine of State necessity and 
Government right of self-defence. 

Let us leave higher law, State necessity, and this overmaster- 
ing right of Government self-defence in that grave, without 
resurrection, where our fathers fondly hoped they had deeply 
buried them, together with all the other accursed enginery 
of tyranny. 

Mr. Lincoln need not flatter himself with the hope that 
posterity, or even the present generation, will accord him ab- 
solution for his usurpation and arbitrary abuse of power by 
reason of the equally great, or even greater, atrocities perpetra- 
ted at the South against civil liberty. That is an example for 
his avoidance, not his imitation. Two wrongs never make a 
right. Because a murder was committed at Lexington, that 
is no reason for permitting it in Louisville. Because six mil- 
lions of our countrymen are suffering tyranny, that is no justi- 
fication for his making the other twenty millions suffer it also. 
On the contrary, the relief of those six millions is the best of 
his whole string of arguments for his war of invasion against 
the South. His inestimable prestige, as the vindicator of the 
Constitution and the law against causeless rebellion, is taken 
from him when he himself tramples on the Constitution and 
laws. He sinks himself to the level of the rebel President, 
and becomes the mere lawless chief of a rebellion against the 
Constitution. 

5. The Two Wars. 

The nation is now afilicted with two terrible wars going on 
toe-ether. The war ao-ainst the Union, and a war against the 
Constitution, are being waged simultaneously. Each wears a 
threatening aspect of great peril. Which presents the greater 
peril, it would be difficult to decide. Wliich, if successful, 
will be most calamitous, men of intelligence will have no diffi- 
culty in deciding, even though they knew that a large majority 
of our countrymen might decide differently. So, in determin- 
ing which of the two is the worst treason — the war against 
the Union, or the war against the Constitution — men will differ 
in the same way. A patriot can side with neither war, but 
must resist them both. He must do this, even though he 



A REVIEW OF THE A 11 G U JI E N T , ETC. 251 

brings upon liimself an imputation, from the ignorant, that he 
thereby favors one of these wars. The patriotism is of little 
worth which cannot bide the scathing of such imputations. 

Independence was a great achievement, but the establish- 
ment of civil liberty was a greater. The former was compara- 
tively of little worth without the latter. 

The Union is an inestimable, national benefit, but the Con- 
stitution is a still greater national blessing. The principal 
value of the Union lies in the preservation of the Constitution. 
The Union is the vase containing the precious ointment. Let 
us not permit the destruction of the ointment for the sake of 
the vase. " We cannot yield the jewel to retain the casket." 
The preservation of the Union is worth a high price, an im- 
mense price, but it is not above all price. We cannot afford 
to give the destruction of the Constitution as that price. 

"We may be said to owe a double allegiance — one to the 
Union, the other to the Constitution. Which is paramount, 
enlightened patriotism will have no hesitation in deciding. 
The one is allegiance to mere territorial limits, whilst the 
other is also allegiance to civil liberty. The one looks mainly 
to the physical prosperity of the nation, whilst the other looks 
to its moral well-being, its means of permanent happiness. 
The one is the ordinary patriotism of all nations, whilst the 
other is peculiar to ourselves, expanding as it does into a noble 
philanthropy, embracing the deep interest of all Christendom. 
The presentation of our Constitution in its supremacy, its 
sanctity, its inviolability, is a great interest in the cause of 
civil liberty throughout the world. Its destruction would be 
the putting out the last lamp of hope to the nations. They 
would mourn in rayless, hopeless gloom. The double fealty 
to Union and to Constitution, beautifully blended into one, is 
that double fealty to country and to liberty, making the proud 
distinctive patriotism of our countrymen. 

Whilst we leave it to President Lincoln, with an army of 
five hundred thousand men and a powerful navy to resist the 
war against the Union, every citizen should gird himself for 
the contest in resisting the other war against the Constitution. 
In this resistance we can expect no aid from the President, 
for he himself is the commander-in-chief of all the aggressors. 



252 A REVIEW OF THK ARGUMENT, ETC. 

iNeitlier can it be expected from Congress, subdued as it is into 
absolute obedience to tbe President by his five hundred mil- 
lion patronage. Neither can it be expected from any of that 
large class, disseminated throughout society, who are thirsting 
for a taste of the Pactolian stream distributed by him. The 
odds are terrible, but let us not despair. The imminence of 
the peril should only serve, with true hearts, to nerve them 
the stronger. 

The celebrated report on retrenchment, made in 1826, by a 
committee of the Senate, of which Mr. Van Buren, Mr. Benton, 
and other distinguished men were members, said : " Patronage 
will penetrate this body, subdue its capacity of resistance, 
chain it to the car of power, and enable the President to rule 
as easily, and much more securely with, than without the 
nominal check of the Senate. 

" "We must look forward to the time when the nomination 
by the President can carry any man through the Senate, and 
his recommendation carry any measure through Congress ; 
when the principle of public action will be open and avowed 
— the President wants my vote, and I want his patronage. 
What will this be but the government of one man ; and what 
is the government of one man but a monarchy ? Names are 
nothing. The nature of a thing is in its substance, and the 
name soon accommodates itself to the substance." 

Yet the gentlemen who made this report never supposed 
that this one-man power would clutch us in less than forty 
years ; they never imagined an annual patronage of five hun- 
dred millions. 

President Lincoln, by way of extenuation for his usurpation, 
in his attempt to suspend the writ of habeas corpus, asks, in 
his message, " Are all the laws but one to go unexecuted, and 
the Government itself to go to pieces, lest that one be violated ?" 
intimating thereby that he has, at most, been guilty of violat- 
ing only one law, one infraction of the Constitution. Let us 
see. 

The following powers are given exclusively to Congress : — 
1. To increase the army. 2. To increase the navy. 3, To 
appropriate the nation's money. 4. To regulate commerce 
with foreiorn nations. 5. To reo-ulate commerce between the 



A REVIEW OF THE ARGUMENT, ETC. 253 

States. 6. To contract debt on behalf of the nation. 7. To 
suspend the writ of habeas corpus. The following powers are 
denied to both Congress and the President: — 1. To proclaim 
martial law. 2. Arrest without a legal warrant. 3. Imprison- 
ment or other punishment without conviction upon legal trial. 
4. Punishment under ex post facto, or non-existing law. 4. The 
introduction of lettres de cachet, bastiles, and the midnight 
secret proceedings of the Inquisition. 5. The interdiction of 
exports. 6. The favoring of some ports to the prejudice of 
others. 7. The regulation of the commerce of a State within 
its own bounds. 8. To impair the freedom of speech and the 
press. 9. To " infringe the people's right to keep and bear 
arms." 10. To make unreasonable searches or seizures. 11. 
To prohibit emigration, or require a passport. 12. To dismiss 
the police of a city, in an unproclaimed State, and appoint 
others in their place. Here are nineteen important laws, or 
constitutional provisions, which he has grossly, wilfully vio- 
lated. His usurpations are so extensive, that it would narrow 
the inquiry to ask, what law or constitutional provision he has 
not violated, rather than to ask which he has violated or 
usurped upon. The rights, the safe-guards he has taken away, 
are greater, far greater than those he has left. It is not a ques- 
tion whether we shall overlook only a single usurpation as he 
claims, but whether we shall countenance such multifarious 
usurpation ; whether the rights and powers he has left to the 
nation, to Congress, or the judiciary, are really worth as much 
as those he has stolen. These thefts are not to be counte- 
nanced or excused under the pretext of putting down the rebel- 
lion, for if he cannot put it down with an army of five hundred 
thousand men, and a powerful navy, without trampling on the 
Constitution, it is because the thing cannot be accomplished, 
and he could not do it with all the power that could be accu- 
mulated into his incompetent hands. He has, with the butt- 
end of his implement, mauled the Constitution to pieces, and 
^vith his foot upon its fragments, he bids the nation an inso- 
lent defiance. 

To all this usurpation a venal Congress yields a servile ac- 
quiescence, and, notwithstanding the oath of its members to 
support the Constitution, they accord him the indemnity of 



254 A REVIEAV OF THE ARGUMENT, ETC. 

their approval. They even egg him on to further usurpations, 
to other excesses. One Senator asks leave to introduce a hill 
to aholish slavery in the rehel States. Another says his party 
will graciously forhear aholition as a means of subduing rebel- 
lion, unless it should become necessary ; but, if it cannot be 
done otherwise, they will proclaim abolition, and almost un- 
disguisedly utters the threat of inciting a servile insurrection ; 
that is, they will cause the desolation of eleven States ; they 
will incite a domestic enemy in every household, with knife 
and torch, to the work of destruction ; they will cause the in- 
discriminate massacre of the innocent women and children of 
eleven States. The worst spirit of all pandemonium could not 
conceive a more infernal purpose. This son of ITew England 
may think that any amount of blood and treasure will be well 
spent, rather than she shall be deprived of the monopoly of 
the finest market in the world for her manufactures and ship- 
ping. He may think that this war is " a thing that will pay ;" 
unlike the last war with England, which 'New England would 
not support because it was " a thing that would not pay," and 
to get rid of which she loudly threatened secession. But he 
should bethink himself before he desolates those eleven States, 
whether New England can afford much blood or treasure in 
killing the goose that lays the golden egg for her benefit. 

Another Senator, a reputed leader, said he proposed to lend 
the President the whole power of the country — arms, men, 
money — " and place them in his hands with authority almost 
unlimited." "I want," he said, " sudden, bold, determined, 
forward war ; and I do not think anybody can conduct war of 
that kind as well as a dictator." This is the avowal of the de- 
liberate purpose to commit foul treason against the Constitu- 
tion in shameless disregard of his oath for its support These 
atrocious sentiments he deliberately uttered twice in the Senate 
without any adequate rebuke. Had they been uttered in the 
Revolution Congress they would have met a withering rebuke. 
Tradition tells us that at the gloomiest period of the Revolu- 
tion, when a British army was ravagmg Virginia, a proposi- 
tion was made in her Legislature to make Patrick Henry 
dictator. The patriot Corbin, a warm friend of Henry, rebuked 
the proposer, and silenced the proposition, by calmly saying: 



A REVIEW OF THE ARGUMENT, ETC. L.JO 

" Your dictatorial crown to liis brow, my dagger to his heart." 
That was the appropriate, indignant manner in which the true 
men of the Revolution rebuked such infam3^ 

In a former, recent publication, the writer, from faith in the 
President's supposed amiability and reputation for integrity in 
private life, gave him exemption from an imputed design to 
erect despotic power on the ruins of the Constitution for his 
own benefit, or that of his party. That exemption must now 
be retracted — more recent developments have destroyed so 
much faith in that amiability and reputed integrity. His per- 
severance, since the meeting of Congress, in reiterated gross, 
wanton, useless violations of the Constitution shows that he 
has no consideration, such as an honest man would have, for 
the obligations of his oath to support the Constitution, or the 
obligations of duty as a citizen and a President. Whatever 
he may have been in private life, he has shown himself any- 
thing but amiable as a President. Those developments, in 
connection with the terrible disclosure of views by his indis- 
creet partisans on the floors of Congress, require doubts to be 
substituted for that exemption. Whether he lacks intelligence 
to see the infinite, permanent injury he is inflicting upon the 
country by his bad example — whether he i;? possessed by the 
weak man's foible, and is seeking vengeance for all the op- 
probrium cast by the South upon himself and his party — 
whether he has joined a conspiracy for giving himself, or party, 
permanent power on the ruins of the Constitution — or whether 
he has blindly yielded himself to the guidance of bad men who 
have fastened themselves upon him, and who will surely lead 
him to his own perdition, or that of the country, must be left 
for after-developments to determine. 

As an indication of the purpose of the reigning party to 
clothe its chief with dictatorship, all notice should not be 
omitted of a bill pending before the Senate at the adjournment 
of Congress, which would have passed if there had been time, 
as proved by test votes, and which, no doubt, will pass at the 
next session. It substantially gives the President or the mili- 
tary commander power to declare martial law over any State 
or district proclaimed to be in rebellion. It says " the com- 
mander shall make such police rules and regulations as he may 



256 A REVIEW OF THE ARGUMENT, ETC. 

deem necessary to suppress rehellion, and all the civil authorities 
shall be bound to carry said rules and regulations into effect; " 
but if they fail to do so, then the commander shall enforce 
them. What is meant by police regulations "necessary to 
suppress rebellion" no man can tell, unless it means, as it 
seems to do, such as the commander may choose to think ne- 
cessary. Here is power to be given, and a command to legis- 
late over an entire State. Nor is this conj&ned to such States 
as have no organized civil government, except such as is aiding 
rebellion, but applies equally to any State which the President 
may choose to declare in rebellion, though it has a loyal Gov- 
ernment honestly aiding in the suppression of the rebellion. 
Another section suspends the writ of habeas cor-pus as to all 
persons " detained by military authority," without saying how 
long the suspension shall last. Another section says, " all per- 
sons found in arms against the United States, or otherwise aid- 
. ing their enemies, shall be detained as prisoners for trial, or may 
at once be placed before a court-martial to be dealt with accord- 
ing to the rules of war in respect to unorganized armed bands 
not recognized as regular troops." What those rules of war 
are the writer does not know, but supposes they authorize 
death. But what every lawyer and every man of intelligence 
does know, is, that this is a most disgracefully loose mode of 
legislation, even if Congress had the power — this referring 
to the unknown and unascertainable "rules of war" to deter- 
mine whether a citizen shall be shot by order of a court-mar- 
tial, or shall have a fair trial by the law of the land. If 2^ 
citizen not in arms is found doing what a court-martial may 
choose to think an aiding of the rebels, he may be instantly 
shot. This is splendid legislation for a free Republic. What 
an admirable engine for tyrannical persecution. Jackson 
thought a respectful published remonstrance against the con- 
tinuance of his martial law, long after the defeat and with- 
drawal of the enemy, was an aiding of the enemy, and prose- 
cuted the publisher before a court-martial. Why may not a 
packed court-martial think that any spoken, written, or printed 
censure of the President, the commander, or one of their sub- 
ordinates, or any other trivial matter at which either may 



A 11 E V I E AV OF THE A R fi U M E N T , ETC. 257 

choose to take personal ofi'encc — such, for instance, as cen- 
sure of abolitionism — is an aiding of tlie enemy. 

Another section, in the tenderness of Congressional mercy, 
says that sentence of death shall not be inflicted upon persons 
"taken in arms" without the approval of the commander of 
the military district, leaving the persons taken not in arms to 
be immediately executed without any such approval. 

The two sections, taken together, authorize the commander 
of a military district, and his packed court-martials, to insti- 
stitute an hidiscriminate massacre of all prisoners however and 
for whatever taken, contrary to the usages of all civilized war- 
fare, even among hostile nations, and which usages, as all pub- 
licists agree, are the least bloody that should obtain in carrying 
on civil war. (See sections of the bill, Appendix E.) 

If there be a lower depth of infamy not yet attained in these 
times of political prostitution and reckless subserviency to 
power, this bill, when passed, will plumb that depth. Baseness 
can dive no deeper into the pool of degradation. To permit 
a packed court-martial, contrary to the usages of civil war, 
recognized in all the civil wars of England and in our own long 
Revolutionary war, to authorize the massacre of prisoners taken 
with arms in their hands, would be a lasting disgrace inflicted 
upon the character of the nation, for which even the lives of 
every member voting for the bill would be little more than an 
adequate atonement. Their lasting disgrace, with every intel- 
ligent man here and abroad, now, and in the long future, is a 
part of the penalty they will certainly have to pay. So keen 
is their appetite for blood and vengeance, that they are reckless 
of the fact, that such a procedure necessarily involves the equal 
massacre of all IS'orthern men taken prisoners by the armies of 
the South. But, worse than even this, if worse there can be, 
is the permission to a packed court-martial to authorize the 
putting to death by a military commander of any citizen or 
citizens he may choose to say were aiding or abetting the rebels. 
What sort of aiding or abetting shall authorize the infliction 
of death the bill does not say. That is all left to the discretion 
of our military masters. Now, the degrees and modes of aid- 
ing and abetting are infinite ; some authorizing the imposition 
of only a small fine, others a short imprisonment, ascending, 
33 



258 A REVIEW OF THE ARGUMENT, ETC. 

like otlier crime, in gradation, until the attaining of such aid- 
ing and abetting as amounts to treason, wMcli deserves death. 
All these are massed together without discrimination, the mili- 
tary being authorized to inflict death for the lightest as well as 
the greatest. These men have not the sense, or, if they have 
the sense, they have not the mercy, to discriminate between a 
public trial before a court of law, by an impartial jury, both 
court and juiy acting under an imposing responsibility to the 
public sense of justice, and a trial before a drum-head court- 
martial. The court and jury are trammeled with legal prece- 
dents of a thousand years, strictly defining what is an aiding 
and abetting of treason within the meaning of the law. On 
the other hand, the court-martial is trammeled with nothing 
but their own discretion, or, rather, their subseiwiency to their 
commander. A political opinion differing from that of the 
ruling party, an imprudent word, written or spoken, of com- 
plaint against our masters, or any other trivial matter, may be 
made the pretext for the assassination under the sanction of 
this bill. 

Have we come to this ? Does a political party dare thus 
attempt to confer such an engine of tyranny upon their party 
chief — thus clothe him with the power of merciless persecution 
against their opposers ? Do they think that all sense of justice, 
all appreciation of liberty, is dead with the nation — that 
nothing can arouse it from its lethargy ? Are we to permit 
the fastening upon us martial law — that is, the will of a com- 
mander — in lieu of law, under the new phrase of " police regu- 
lations," or the old one of "aiding and abetting," expounded 
by military despots ? 

Mr. Lincoln has not waited for the passage of this bill. Mar- 
tial law has already been proclaimed at St. Louis, with an accom- 
panying declaration that all infraction of its rules will be 
" promptly punished ; " three newspapers have been suppressed, 
and quiet citizens of the first respectability arrested and de- 
ported to distant bastiles ; this, too, without any proclamation 
of rebellion against either the State or the city. 

Mr. Lincoln can easily create a rebellion whenever he wants 
one. To do this he need only repeat it in any State having the 
semblance of power to resist what he has already done in the 



A REVIEW OF THE ARGUMENT, ETC. 259 

two unproclaimed States of Maryland and Missouri, and lie 
will have, not rebellion m aid of disunion, but within the Union, 
under the national flag, against unconstitutional oppression. 
When he has created the rebellion he can issue his proclama- 
tion, and then will come this act of Congress pretending to 
legalize his dictatorship. His partisans may pretend to think 
his discretion may be safely trusted not to abuse such power ; 
but the Constitution places no such reliance on any man's for- 
bearance or discretion. Neither is the nation disposed or bound 
so to trust him, or any other President. He who could allow, 
without even public rebuke, three repetitious of wanton mas- 
sacres by his German soldiers in the streets of St. Louis of un- 
offending men, women, and children, and he who imposes such 
needlessly rigorous imprisonment upon citizens as respectable 
as himself or any member of his Cabinet, for no cause but that 
of their political opinions in favor of the right of secession, 
deserves not to be so trusted. 

As to a practical dictatorship, that is past praying against. 
"We already have a dictatorship. With a subservient Congress, 
wdth an obedient enormous army, wdth an active assisting civil 
corps of a hundred, and soon to be increased to two hundred 
thousand, with hundreds of thousands of partakers and of 
hungry seekers of patronage, W' ith a muzzled press and a power- 
less judiciary, Mr. Lincoln is now the master of this nation. 
His will is everywhere law. The dictatorship is in full force. 
All that is left for us is to do w'hat we may to prevent its 
becoming a permanent institution. 

The higher-law doctrine, that last refuge of fanaticism, after 
a thorough defeat in the field of argument, was forever buried, 
as it w\as hoped, under an immovable load of national contempt 
and odium. But we find it now not only resuscitated into new 
life, but w^ith vastl}^ increased vigor. From the mere shib- 
boleth of a pow^erless faction of fanatics, it has been inaugu- 
rated by the President and his higher-law Cabinet into the 
ruling principle of the Government. They have cunningly 
dropped its old name of odium and reproach, substituting that 
more imposing one, the law of war. They tell us that ours is 
a mere fair-weather Constitution — not made for the stormy 
weather of war or rebellion ; that whilst peace has its Consti- 



260 A REVIEW OF THE ARGUMENT, ETC. 

tution and laws, war lias also its appropriate law, superseding 
tlie other — this supreme, paramount law of war being the un- 
bridled will of its commander-in-chief This is the recognized 
higher law of the day, which is openly claimed to be above all 
constitutional restraint. It is, on a larger scale, what has been 
long known in this country under the name of lynch law. 

"What a calumny upon the great founders of the Republic to 
say the frame of Government formed by them with so much 
care was intended merely as a fair-weather Constitution ! It 
contemplates wars and rebellions, and gives the needful power 
for dealing with both ; yet it was intended not to have sway 
during war or rebellion ! During war and rebellion it was to 
be suspended — and by what ? By that thing, of all others 
the most abhorrent to the men of the Revolution — that then 
detested and forever execrable thing, a military despotism. If 
military despotism can ever be an indispensable aid in carry- 
ing on war, it must have been for precisely that seven years' 
war through which they had just passed — a feeble people 
struggling for independence against a powerful enemy, aided 
by tens of thousands of tories and traitors. If ever there was 
a military commander fit to be trusted with arbitrary power, 
they knew "Washington to be that man. But they gave him 
no such trust ; they acquiesced in no such supposed necessity 
for military dominance ; but, by their proud, successful exam- 
ple, gave the lie to the foul imputation upon republican insti- 
tutions, and taught their posterity that there never could be 
need, under any circumstances, for a military dictatorship. 

Again, we have the example of the last war with England, 
as righteous a war as was ever waged by one nation against 
another, yet during its whole progress denounced by a power- 
ful political party, in and out of Congress, by public speeches 
and the public press, together with endless charges of corrup- 
tion and imbecility against the Administration. Such was the 
acerbity and untiring zeal of that party, that, having entire 
political control of New England, it rendered the whole of that 
large part of the nation's population and wealth almost per- 
fectly neutral in the war, giving the Government no aid, but 
hanging upon it like a palsied limb. During the sacking 
and burning of 'Washington City, and the immediately sue- 



A REVIEW OF THE ARGUMENT, ETC. 2G1 

cccding attack on Baltimore — in fact, during the years of 
rigorous blockade of our ports, the opposition never ceased to 
thunder forth their denunciations against the war and the Ad- 
ministration. Did the Administration resort to arbitrary mea- 
sures to silence this opposition, or to protect itself against the 
secret machinations of suspected spies and traitors ? Not so. 
No man, no press was disturbed for political opinion. If the 
policy of the present Administration had been pursued, not a 
prominent politician or editor of the Federal party in New 
England would have been left outside a jail. But President 
Madison and his Cabinet were imbued with the true spirit of 
the Revolution. They recognized the supremacy of the law 
as the indispensable price of liberty, at all times, and under all 
circumstances, and they bowed to it in willing obedience. 

The pretext of any absolute necessity for the arbitrary un- 
constitutional measures now adopted as an aid in suppressing 
rebellion is a mere sham. It is a pretext gotten up, not for 
national protection, but for political persecution. It is a mere 
absurdity to contend that the protection of this great nation 
of twenty millions needs the institution of martial law — the 
arbitrary, lawless suppression of a few newspapers — and the 
imprisonment of a few hundred suspected persons, scattered 
through the countrj-. Party vengeance, not national safety, 
must be the true motive. All that those presses and suspected 
persons could possibly do, would not impair the strength of 
the Government half so much — nay, not a tenth part so 
much — as such manifestations of a deliberate purpose of the 
President to cast himself free from all constitutional restraint, 
and to put himself above the law. Such a course, if there 
were no alternative, would drive tens of thousands of loyal 
Union men to the dire alternative of aiding either the rebel- 
lion against the Union or the rebellion against the Constitu- 
tion. But there being another, a far better alternative, they 
will aid neither. Hence, tens of thousands of those who other- 
wise would be active, zealous supporters of the Government, 
are driven into inactive neutrality, and to that extent its strength 
is crippled and impaired. 

The whole theory upon which the policy of arbitrary, illegal 
coercion rests, if not mere "pusillanimity," as said by Mr. Dana, 



262 A REVIEW OF THE ARGUMENT, ETC. 

is a total misconception of tlie character of our people. There 
is nothing in the whole circle of Government or individual 
operations which they hold in such utter abhorrence as arbi- 
trary, illegal oppression. Give the enemies of the Government 
the means of playing upon, exciting this feeling, and you fur- 
nish them an aid of great potency, whilst you correspondingly 
weaken the Government. Look at the opposite examples of 
Kentucky and Missouri. The latter had, at the commence- 
ment of these troubles, as proved by the elections, a much 
larger proportion of Union men than the former. They both 
had the misfortune of having Governors and Legislatures with 
secession proclivities, or, at least, sympathies. The true Union 
men of both States implored the President to let them alone — 
to leave to them the management of the seceders. The prayer 
from Kentucky was heeded, the consequence being that she 
was placed, and has been kept, in a position which General 
McClernand has said is worth to the Government an army of 
forty thousand men. Missouri was not so fortunate. A ma- 
lign influence intervened between her true Union men and the 
President. The policy of coercive intervention was tried upon 
her. The consequence was that her position now costs the 
Government an army of more than forty thousand men. So 
much for the coercion policy. It should never be forgotten 
that Americans are unused to coercion — are impatient under 
it — don't like to see it carried on; and, therefore, it should 
never be used but as a last resort — a dire necessity. The most 
respectable, intelligent, unwavering Union men of Missouri 
still insist that, beyond all doubt, if they had been let alone, 
the result would have been the same there as in Kentucky. 

The writer was the first Union man in Kentucky who pub- 
licly advocated any sort of coercion as a remedy for the rebel- 
lion of the Southern States. This he did on the 10th of April 
last. In accordance with what he then thought, and still be- 
lieves, was the almost undivided opinion of the thinking men 
of Kentuck}^ he said : " Coercion by an invading army is what 
no intelligent person does, or ever did, contemplate. The 
evils would be infinite, without any compensating benefit from 
such a course." What he recommended was the collection of 
duties on ship-board, ofi" the Southern ports. The impotency 



A REVIEW OF THE ARGUMENT, ETC. 263 

of tlie Soutlicrii Confederacy to relieve itself from this sort of 
coercion, together with the burthen of taxation, would, it was 
thought, bring the Southern people to their senses. If not, 
then the forcible reopening of the navigation of the Missis- 
sippi and recapture of iTew Orleans were looked to for accom- 
plishing the object. This, with the addition of a rigorous 
blockade, is substantially the plan of General Scott, as divulged 
in his conversation with the editor of the !N'ew York Times 
previous to the battle of Bull Run. Something like it is also 
believed to have been the plan of the President when he issued 
his first proclamation. The call for three months volunteers 
is full proof that he did not contemplate a serious invasion. 
No man of sense would have thought of depending upon that 
description of troops for an invasion. Rumor says ho was 
driven from this policy, and made to adopt that of invasion, 
by the caucus dictation of nine or ten Grovernors of ISTorthern 
States, rabid partisans, as indispensably necessary to the sal- 
vation of their party. Be all this as it may, it is worthy of 
consideration whether it is not still best to resume somethins: 
like that original plan. 

"With an army of seventy thousand men to guard Washing- 
ton, and threaten Virginia ; another of twenty thousand to guard 
Fortress Monroe, and threaten aSTorfolk and Charleston ; and 
another of forty thousand to guard Missouri, and threaten 
Memphis, would put invasion from the South at defiance; 
whilst a comparative small army sent by sea might conquer 
and hold New Orleans. That place is so completely the heart 
of Louisiana that its conquest and holding would necessarily 
be followed by the immediate submission of the whole State ; 
whereas the taking of Richmond, or any other Southern city, 
will amount to little more than the conquest of the ground on 
which the invading army will be encamped. 

Louisiana detached, the Southern Confederacy is broken up. 
The Confederacy cannot last without her. Mississippi, Ar- 
kansas, and Texas must soon follow, wherever she goes. The 
balance would be too feeble to hold together. Besides, the 
opinion has been, and still is, confidently entertained that, 
if the irritation of active war is removed, the people of the 
South cannot be brought to stand the loss of more than two 



264 A REVIEW OF THE ARGUMENT, ETC. 

cotton crops. This plan permits the reduction of the army to 
little over two hundred thousand — perhaps even less — with 
good hope of terminating the war in two years. According 
to the opinion of many men, full as wise as Mr. Lincoln and 
his Cabinet, the present plan does not promise a termination of 
the war in less than four to seven years, with an equal chance 
of proving unsuccessful in a permanent subjugation, and which, 
if successful, would leave the two sections in no condition of 
feeling to remain parts of the same nation. 

A defensive war by the North, whilst it would not increase 
or intensify the bad feeling of the sections, is dictated by 
every principle of sound policy. Many sagacious men deem 
it by far the most expeditious mode of terminating the war. 
The North is far less interested in its speedy termination than 
the South. The maintenance of an army of two hundred 
thousand will soon exhaust the resources of the Southern 
Government, unless in repelling a war of invasion. In resist- 
ing that, their citizens will contribute the last dollar. In its 
absence, they cannot be induced to stand, for two years, enor- 
mous taxation and total loss of trade. If they attempt the 
disadvantageous policy of a war of invasion against the North, 
it would require two men to our one. 

The raising of an army of five hundred thousand men, if at 
all practicable, which many doubt, is a thing greatly to be 
deprecated, and avoided if possible. Suppose the war success- 
ful, what is to be done with five hundred thousand armed men 
after it is over ? The soldier's life is a comparatively easy one. 
After a few 3'ears men become fond of it. The pay is better 
than for any kind of hard labor. Men and ofiicers become 
disinclined to exchange for any mode of dull, progging indus- 
try. Let it be remembered that full one-half of these men 
will be foreigners, and that all will be greatly disappointed as 
to the amount of plunder they expect to gather. "What will hin- 
der them from helping themselves out of the Northern cities ? 
These men will be the masters of the nation. There will be 
no means of resistance. They can do with the country what 
they please. It would be merely ridiculous to base any expec- 
tation on their supposed respect for the Constitution and laws, 
after the lessons taught them by Mr. Lincoln. Apparent as it 



A REVIEW OP THE ARGUMENT, ETC. 265 

now must be to every one, liow impracticable is a sudden 
erusbing out of the rebellion by the application of mere force, 
without waiting the aid of slower influences, the grand desider- 
atum should be the keeping down of the army to the lowest 
possible number. Precipitation and precipitators have had 
their day. Their discomfiture accompanied that of Bull Run. 
All plans should be carefully revised, and precipitation should 
be no part of the one adopted. 

It has been shown that the terrible blunder of coercive inter- 
vention in Missouri, has lost, what would have been her quiet 
neutrality, the equivalent for an army of forty thousand men, 
and, by throwing her into her present position, imposed a 
burthen on the Government equal to an army of forty thou- 
sand, the great result of the blunder being eighty thousand. 
The war of invasion has proved still more injurious to the 
Union cause. Previous thereto it was doubtful whether, upon 
a fair vote, the Union men were not the majority in most of 
the seceded States. Since then, there are no Union men any- 
where left, except in West Virginia, East Tennessee, and a few 
sparsely scattered through Middle and West Tennessee. The 
war has consolidated the people, with that exception, into a 
unanimous, unchangeable spirit of resistance for as long as it 
may last. If it should be pushed actively forward for two or 
three years, the two sections will come to hate each other as 
bad as ever the English and French did. Such an animosity 
would leave a reconstruction of the Union scarcely desirable. 
Still, immediate peace or a recognition of the independence 
of the seceded States is not to be thought of. If Louisiana is 
permitted to go, the peace would not last a year. The vast 
population on the upper waters of the Mississippi will never 
submit to her final separation ; a mere free transit to and from 
the Gulf will not satisfy them. Having no vessels suitable for 
ocean navigation, what they need and will have, is a market at 
New Orleans, encumbered with no sort of tax, where they can 
obtain their own supplies, and furnish Mexico, South America, 
and the Islands. The South is in no temper 3-et to yield 
Louisiana. She may be brought to that temper in eighteen 
months, if the irritation is not kept at fever heat by an active 
prosecution of the war. Satisfy the Southern people that the 
34 



266 A REVIEW OF THE ARGUMENT, ETC. 

Governmeut does not mean a war of subjugation or vindictive 
persecution, and it is next to impossible that a majority of 
them will continue to submit to enormous taxation and the 
loss of the sale of two entire cotton crops. They will force 
their Government to yield Louisiana and Western Virginia, 
as the price of peace, though they may have a well-founded 
fear that their Confederacy cannot last without Louisiana. 
The point of honor will be saved, their independence acknowl- 
edged, and they will trust to fortune for the balance. Should 
the ultimate result be the permanent separation of Virginia, 
the Carolinas, Georgia, Alabama, and Florida, that would be 
far better for us than the further prosecution of this war, 
whose termination no candid, intelligent man can pretend to 
foresee. But should the anticipated split of the Confederacy 
take place, that separation would not be permanent ; but, after 
the lapse of a few years, reconstruction of the whole would 
be the most probable ultimate result. 

There is some danger of reaction at the IsTorth, running to 
the extreme of a precipitate and improvident peace. This 
may come from any one of several causes — failure to raise 
troops, failure to raise money, another serious disaster in the 
field, or the interference of England or France. The timidity 
shown as to the amount of taxation, and its entire postpone- 
ment for a year, indicate a want of confidence in the public 
sentiment of the North. The papers from that quarter tell us 
that enlisting already begins to drag heavily before the place 
of the discharged three months men has been supplied. The 
resignation of two hundred officers since the late disaster, 
looks as if zeal was flagging. A defensive war, with a rigor- 
ous blockade, would not require half as much in men or 
money, and would be within the easy ability of the North. 
In the opinion of very many having the best means for judg- 
ing the temper and resources of the South, this mode of con- 
ducting the war is the best for its speedy termination, and the 
only one for a reconstruction of the Union. It has the further 
recommendation of removing all pretext for any of those out- 
rages on the Constitution which are filling the hearts and 
minds of good men everywhere with gloom and despondency. 



A REVIEW OF THE ARGUMENT, ETC. 267 



APPEN"DIX TO CHAPTER XV. 



EXTRACTS FROM CALHOUN S SPEECH ON JACKSON S PROTEST, 

Under our system, all who exercise power are bound to show, when ques- 
tioned, by what authority it is exercised ; to show, in a word, the express 
grant of the power. I proclaim it as a truth, as unquestionable truth, of the 
highest import, that the President has no right to exercise any implied or 
constructive' power. I speak upon the authority of the Constitution itself, 
which, by an express grant, has vested all the implied constructive powers in 
Congress, and in Congress alone. Hear what the Constitution says : Congress 
shall have power " to make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other powers vested by 
this Constitution in the Government of tlie United States, or in any depart- 
ment or officer thereof." 

Comment is unnecessary ; the result is inevitable. The Executive, no de- 
partment, can exercise any power without express grant from the Constitu- 
tion, or by authority of law. A most noble, wise provision, full of the most 
important consequences. By it ours is made emphatically a constitutional 
and legal Government, instead of a Government controlled by the discretion 
or caprice of those appointed to administer and execute its powers. By it our 
Government, instead of consisting of three independent, separate, conflicting, 
hostile departments, has all its power blended harmoniously into one, without 
the danger of conflict, and without destroying the separate, independent exist- 
ence of the parts. Let us pause for a moment to contemplate this admirable 
provision, the simple but efficient contrivance by which these happy results 
are secured. 

It has been often said that this provision of the Constitution was unneces- 
sary ; that it grew out of abundant caution to remove the possibility of a 
doubt as to the existence of implied or constructive powers ; and that they 
would have existed without it, and to the full extent that they now do. They 
who consider this provision as mere surplusage do great injustice to the wis- 
dom of those who framed the Constitution. I shall not deny that implied or 
constructive powers would have existed, and to the full extent as they now 
do, without this provision ; but, had it been omitted, a most important ques- 
tion would have been left open to controversy — Where would they reside — 
in each department ? Would each have the right to interpret its own powers, 
and assume, on its own will and responsibility, all the powers necessary to 
carry into effect those granted to it by the Constitution ? What would have 
been the consequence ? Who can doubt that a state of perpetual, dangerous 
conflict between the departments would be the necessary, inevitable result, 
and that the strongest would ultimately absorb all the powers of the other 



268 A REVIEW OF THE ARGUMENT, ETC. 

departments? Need I designate -which is that strongest? Need I prove that 
the Executive, as the armed interpreter, vested with the patronage of the 
Government, would ultimately become the sole expounder of the Constitution ? 
It was to avoid this dangerous conflict between the departments, and to pro- 
vide most eflPectually against the abuses of discretionary or implied powers, 
that this provision has vested all the implied powers in Congress. 

Instead of a question of right, he makes it a question of duty, and thus 
inverts the order of things, referring his rights to his duties, instead of his 
duties to his rights, forgetting that rights always precede duties, the duties 
being, in fact, what the rights impose, and, of course, that duties do not con- 
fer power, but impose obedience — obedience, in his case, to the Constitution 
and laws in the discharge of his ofiBcial duties. The opposite view, that on 
which he acts, would give to the President the right to assume whatever duty 
he might choose, and then convert such duties into powers. This, if admitted, 
would render him as absolute as the Autocrat of Russia. 

B. 

EXTRACTS FROM WEBSTER's SPEECH ON JACKSOn's PROTEST. 

The first object of a free people is the preservation of their liberty; and 
liberty is only to be maintained by constitutional restraints and just divisions 
of political power. Nothing is more deceptive or more dangerous than the 
pretence of a desire to simplify Government. The simplest Governments are 
despotisms ; the next simplest limited monarchies ; but all republics, all 
Governments of law, must impose numerous restraints and limitations of 
authority. They must be subject to rule and regulation. This is the very 
essence of free political institutions. The spirit of liberty is, indeed, a bold 
and fearless spirit ; but it is also a sharp-sighted spirit. It is a cautious, 
sagacious, far-seeing intelligence. It is jealous of encroachment, jealous of 
power, jealous of man. It demands checks ; it seeks for guards ; it insists 
on securities ; it entrenches itself behind defences, and fortifies with all pos- 
sible care against the assaults of ambition and passion. It does not trust the 
amiable weaknesses of human nature ; and, therefore, will not permit poiver 
to overstep its prescribed limits, though benevolence, good intent, and patriotic 
intent come along with it. It seeks for duration and permanence. It looks 
back and before ; and, building on the experience of ages which are past, it 
labors diligently for the benefit of ages that are to come. This is the nature 
of constitutional liberty ; this is our liberty. A separation of departments, 
and the preservation of the lines of division between them, is the fundamen- 
tal idea in the creation of all our Constitutions ; and, doubtless, the continu- 
ance of regulated liberty depends on the maintenance of these boundaries. 

There is a strong disposition running through the whole protest to represent 
the Executive as the peculiar protector of public liberty — the chief security 
on which the people are to rely against the encroachments of other branches 
of the Government. To this end the protest spreads and dwells upon the 
President's official oath. Would the writer of the protest argue that the oath 
itself is any grant of power ; or that because the President is to preserve, 



A REVIEW OF THE A R G U M E N T , ETC. 269 

protect, and defend the Constitution, he is, therefore, to use what means he 
pleases, or any means for such preservation, protection, and defence, except 
those which the Constitution and laws have specially given him ? Such an 
artmment would be preposterous ; but if the oath be not cited for this prepos- 
terous purpose, with what design is it thus displayed unless it be to support 
the idea that the maintenance of the Constitution and the preservation of the 
public liberties are especially confided to the safe discretion, the true modera- 
tion, the paternal guardianship of Executive power? 

The proposition is that the duty of defending the Constitution against the 
representatives of the States and the representatives of the people results to 
him from the nature of his office, and that the founders of our Republic have 
given to this duty peculiar solemnity and force. 

Mr. President, the contest for ages has been to rescue liberty from th^ grasp 
of Executive poicer. Whoever has engaged in her sacred cause, from the days 
of the downfall of those great aristocracies which stood between king and 
people to the time of our own independence, has struggled for the accom- 
plishment of that single object. On the long list of the champions of human 
freedom there is not one name dimmed by the reproach of advocating the 
extension of Executive authority. On the contrary, the uniform and steady 
purpose of all such champions has been to limit and restrain it. To this end 
all that could be gained from the imprudence, snatched from the weakness, 
or wrung from the necessities of crowned heads, has been carefully gathered 
up, secured, and hoarded as the rich treasures, the very jewels of liberty. To 
this end popular and representative right has kept up its warfare against 
prerogative with various success ; sometimes writing the history of a whole 
age with blood — sometimes witnessing the martyrdom of Sydneys and Rus- 
sells — often baffled and repulsed, but still gaining, on the whole, and hold- 
ing what it gained with a grasp that nothing but its own extinction could 
compel it to relinquish. 

Through all this history of the contest for liberty. Executive power has 
been regarded as a lion that must be caged. So far from being the object of 
enlightened popular trust — so far from being considered the natural protec- 
tion of popular right*— it has been dreaded as the great object of danger. 

Who is he so ignorant of the history of liberty at home and abroad — who 
is he from whose bosom all infusion of American spirit has been so entirely 
evaporated — as to put in the mouth of the President the doctrine that the 
defence of liberty naturally results to Executive power, and is its peculiar 
duty ? Who is he that is generous and confiding toward power where it ia 
most dangerous, and jealous only of those who can restrain it? Who is he 
that, reversing the order of State and upheaving the base, would poise the 
pyramid of political system upon its apex ? Who is he that declares to us, 
through the President's lips, that the security for freedom rests in Executive 
authority? Who is he that belies the blood and libels the fame of his ances- 
try, by declaring that they, with solemnity of form and force of manner, have 
invoked the Executive power to come to the protection of liberty ? Who is 
he that thus charges them with the insanity or recklessness of thus putting 
the lamb beneath the lion's paw? No, sir — no, sir. Our security is in our 



270 A REVIEW OF THE ARGUMENT, ETC. 

watchfuhiess of Executive poioer. It was the constitution of this department 
which was infinitely the most difficult part in the great work of creating our 
Government. To give the Executive such power as should make it useful, 
and yet not dangerous — efiicient, independent, strong, and yet prevent it 
from sweeping away everything by its military and civil power, by the in- 
fluence of patronage and favor — this, indeed, was difficult. They who had 
the work to do saw this difficulty, and we see it. If we would maintain our 
system, we shall act wisely by preserving every restraint, every guard the 
Constitution has provided. When we, and those who come after, have done 
all that we can do, and all that they can do, it will be well for us and for them, 
if the Executive, by the power of patronage and party, shall not prove an 
over-match for all other branches of the Government. 

I will not acquiesce in the reversal of all just ideas of Government. I will 
not degrade the character of popular representation. I will not blindly con- 
fide where all experience admonishes to be jealous. I will not trust Executive 
power, vested in a single magistrate, to keep the vigils of liherty. 

Encroachment must be resisted at every step. Whether the consequences 
be prejudicial or not, if there be an illegal exercise of power, it must be re- 
sisted in the proper manner. We are not to wait till great mischief come — 
till the Government is overthrown, or liberty itself put in extreme jeopardy. 
We should not be worthy sons of our fathers, were we so to regard questions 
afi'ecting freedom. They accomplished the Revolution on a strict question of 
principle. They took up arms against the preamble of an act. They saw in 
the claim of the British Parliament, a seminal principle of mischief, the 
germ of unjust power, which they struck at till they destroyed it. On this 
question of principle, while actual sufi'ering was yet afar ofi", they raised their 
flag against a power to which Rome, in her glory, is not to be compared — a 
power which has dotted the surface of the whole earth with her military posts, 
whose morning drum-beat, following the sun and keeping company with the 
hours, circles the earth daily with one continuous, unbroken strain of the 
martial airs of England. 

C. 

In 1813, a citizen being held in custody by Major-General Lewis, command- 
ing a division of the United States Army, on a charge of treason, a writ of 
habeas corpus was issued by the Supreme Court of New York, to which Gene- 
ral Lewis, having made an evasive return, an attachment was awarded against 
him, accompanied by the following opinion of the whole Court, delivered by 
Kent, Chief Justice. (See 10 Johnson, 333.) 

" This is a case which concerns the personal liberty of the citizen. Stacy 
is now suffering the rigor of confinement, in close custody. He is a natural 
born citizen, residing in this State. The pretended charge of treason, with- 
out being founded on oath, and without any specification of the matters of 
which it might consist, and without any color of authority in any military 
tribunal, to try a citizen for that crime, is only aggravation of the oppression 
of the confinement. It is the indispensable duty of this Court, and one to 
which every inferior consideration must be sacrificed, to act a faithful guar- 



A REVIEW OF THE ARGUMENT, ETC. 271 

dian of the liberty of the citizens, and to j];ive ready and effectual aid to the 
means provided by law for its security. One of the most valuable of those 
means is this writ of habeas corpus, which has been justly deemed the glory 
of the English law ; and the Parliament of England, as well as its courts of 
justice, have, on several occasions, and for centuries, shown the utmost solici- 
tude, not only that the writ, when called for, should be issued without delay, 
but that it should be punctually obeyed. Nor can we hesitate in enforcing a 
due return to the writ, when we recollect that, in this country, the law knows 
no superior ; and that, in England, her courts have taught us, by a series of 
instructions and examples, to exact the strictest obedience to whatever extent 
the persons to whom the writ is directed may be clothed with power, or ex- 
alted in rank, 

" If ever a case called for the most prompt interposition of the Court to en- 
force obedience to its process, this is one. A military commander is here as- 
suming criminal jurisdiction over a private citizen, is holding him in close 
confinement and contemning the cieil authority of the State." 

D. 

SYNOPSIS OF CASES REFERRED TO BY ATTORNEY-GENERAL. 

The first cited is the Rhode Island case (7 Howard), involving the validity 
of a statute declaring martial law over that State, which had been sustained 
by its highest court. The points decided by the Supreme Court are : 

First. That according to uniform precedent usage, the Court must conform 
to the decision of the State Court, this being a matter of purely local State law. 

Second. That whenever it may become necessary for the Federal Govern- 
ment to determine which of two conflicting governments in a State is the 
rightful one, it is for Congress and the Executive, who represent the political 
power, and not for the judiciary to decide. 

When these points were decided, the whole case was disposed of; and all 
else, in the loose opinion delivered, was extra-judicial, and the obiter dicta of 
the judge delivering the opinion. 

In reply to a question, having no pertinency to the case in hand, that a gov- 
ernment by martial law is not such a republican government as is guaranteed by 
the Federal Constitution, the opinion wanders off into loose talk about that. 
Whilst conceding that permanent martial law would not be a republican 
government, yet, it says, the Legislature of a State, having the right to use 
its whole military power in suppressing rebellion, and, treating martial law 
as part of that power, says it may be temporarily used for that purpose. But 
this must be taken in connection with the fact stated by the Court, that the 
people of Rhode Island were then still living under their old Colonial charter 
as their form of government — they being, consequently, without the protec- 
tion of a written Constitution or bill of rights, the Federal Constitution hav- 
ing no bearing on their case. Not a word is said, going to show that the 
President, or Congress, or any other State Legislature, having a bill of rights, 
could establish martial law ; nor is there the slightest intimation that the 
President can suspend the privilege of the writ of habeas corpus. 



272 A REVIEW OF THE ARGUMENT, ETC. 

It is evident, also, that in speaking of martial law, the writer of the opinion 
had in contemplation a very different sort of power from what has heretofore 
been uniformly understood by law, and political writers, and In common par- 
lance, as to the meaning of the phrase " martial law." He seems to treat it as 
a sort of mere adjunct to ministerial power in the enforcement of existing law, 
and by no means as the introducing of a new or the suspending of the old law. 

Justice to Chief Justice Taney requires that these extra-judicial sayings of 
his, in this case, should be taken in connection with his recent decision in the 
Merriman case, — the latter, by all comity of the profession, being entitled to be 
treated as the more deliberate, and therefore the better expression of his opin- 
ion. This latter opinion is so clear, orthodox, and unanswerable in the ex- 
pression of his views as to fundamental principles of the Constitution in direct, 
plain, indisputable conflict with the exercise of any such power by Congress, 
or the President, for establishing martial law, that it must, with every fair, 
intelligent mind, exempt him from the dishonoring imputation of having 
meant, by the former opinion, to have made any such concession. At any 
rate, the candid will all agree, that the latter strips the former of all preten- 
sion as a judicial authority for the purpose claimed, Besides, the former 
opinion expressly says that the Petition of Right abolished martial law in 
England, except as to the omnipotent power of Parliament, consequently the 
equivalent expression in our bill of rights must have abolished it in this coun- 
try also, without any exception of Congress or President, there being no om- 
nipotent power here. 

The next case cited by the Attorney-general is Fleming vs. Howard (9 
Howard, 603), which merely decides, that though Tampico Avas occupied by 
United States forces during the Mexican war, it was still a foreign port, and 
duties could properly be levied on goods imported from that place. 

The next case cited is Cross vs. Harrison (16 Howard, 164). It only decides 
that tonnage on foreign vessels, and duties on foreign goods, Imported Into 
San Francisco, were lawfully collected by the temporary government whilst 
the war with Mexico continued ; and afterward, until the revenue system of 
the United States was put into operation there by Congress ; also, that the 
formation of a temporary government in California, by our General, was the 
legitimate exercise of a belligerent right over a conquered territory of the 
foreign enemy. 

The next case Is the Santisimo Trinidadla (TWheaton, 305). The principal 
points decided here were, that the commission of a public ship of a foreign 
State, signed by the proper authorities, is conclusive evidence of her national 
character ; and that during the existence of civil war between Spain and her 
colonies, and previous to our acknowledgment of their independence, the colo- 
nies were deemed by us belligerent nations, entitled, so far as concerned us, to 
all sovereign rights of war against their enemy. There were various other 
points disposed of, but none having any nearer analogy than these, to the 
President's power over the writ of habeas corpus. 

The only other case cited Is Martin i'5."Wheaton (12 Wheaton, 29). The only 
matter decided in this case, having the slightest bearing upon the claimed 
power of the President over the writ of habeas corpus, is this : That the au- 



A REVIEW OF TUE ARGUJIENT, ETC. 273 

thority to decide Avhether there is a danger of invasion to justify a call of 
militia to repel it, under the act of Congress, is exclusively vested in the Presi- 
dent, and his decision thereon is conclusive. This is plain, good authority to 
prove, what needed no proof, his like authority to detei'mine the question of an 
existing rebellion, under the same act, authorizing a similar call for its suppres- 
sion ; but it does not tend at all to prove his power to suspend the vrrit of 
habeas corpus as an aid in suppressing the rebellion. 

These are the cases, all the authorities relied on, for justifying so extraor- 
dinary, so unprecedented a usurpation of power. They, none of them, nor all 
of them together, give it the slightest sanction. The pretence, that they do, 
falls within the category of the broadly ludicrous. There never was used, on 
any important occasion, the parade of " such a beggarly account of empty 
boxes to make up a show," and gull ignorant credulity. 

E. 

SECTIONS OF THE BILL BEFORE THE SEXATE, XOT PASSED FOR WANT OF TIME. 

" Section 2. After publication of said proclamation (of rebellion) the said 
commander shall make and publish such ^wZice rules and regulations, conform- 
ing as nearly as may be to previously existing laws, as he may deem necessary 
to suppress said rebellion, restore order, and to protect the lives and property 
of all the loi/al citizens within said district; and all the civil authorities within 
said district shall be bound to carry said rules and regulations into effect. 

"Section 3. If, from any cause whatever, the said civil authorities fail to 
execute said rules and regulations, the said military commander shall cause 
them to be executed and enforced by the military force under his command." 

Here it is distinctly attempted to give power to a military commander to 
legislate at will, or make laws for a whole State, and which even the civil 
authorities are enjoined to obey — stringent laws, too, such as are necessary to 
suppress rebellion. The simulated restriction of "as near as may be to pre- 
viously existing laws" is no restriction at all, nor was it meant to be. As near 
as may be, would be the identical same laws, which would not do ; for new 
laws are intended, and, whatever may be the meaning of police regulations 
for a whole State, if they be of State creation, they are necessarily limited, 
and under judicial control, whereas the intent of the bill is to place the com- 
mander's stringent rules and regulations above that control. Besides, they 
are such "as he may deem necessary to suppress rebellion," etc., and if those 
pre-existing are not adequate or proper, he, of course, is to make others to suit 
himself. So that they are such "as he deems necessary;" that is, all which is 
requisite to their validity. This is a delegation or substitution of legislative 
power with a vengeance. The attempt is even without a mask — it is impu- 
dently made, without an effort at disguise. Here, as is also noticeable, is a 
distinct recognition of a civil authority in the land, of which the President 
and his military subordinates form no part, notwithstanding the theory of 
Messrs. Lincoln and Bates. 

"Section 4. From and after the publication of the proclamation, the opera- 
tion of the writ of habeas corpus shall be so far suspended that no military 

35 



274 A REVIEW OF THE ARGUMENT, ETC. 

officer shall be compelled to return the body of any person or persons detained 
by him by military authority; but, upon the certificate, under oath, by the 
officer having charge of any one so detained, that such person is detained by 
him as a prisoner under military authority, further proceedings under the writ 
shall be dismissed by the judge, or court, having issued said writ." 

This section is a sad specimen of senatorial professional ability, supposing, 
in charity to the Senate, that it did not intend to make every petty officer a 
sort of sub-dictator in his sphere. Every captain, lieutenant, sergeant, and 
corporal is not only an officer, but also "a military authority;" and any of 
them having a citizen in custody, under his own causeless, unauthorized 
arrest, may truthfully return that the prisoner is held by military authority. 
The court must take his say-so in the matter, dismiss the writ, and is not per- 
mitted to inquire whether, in fact, the detention is by real military authority — 
that is, in conformity with those same rules and regulations — or upon the mere 
authority of Mister Corporal. Indeed, the section allows the rules and regu- 
lations to go even to that extent, and permit an imprisonment by a corporal, 
upon his own discretion, without any limit to the duration of the imprison- 
ment or the discretion. This is splendid legislation for Senators of a free 
people. They must be possessed with something worse than what Mr. Dana 
designates as "pusillanimity." 

" Section 5. All persons, who, after the publication of said proclamation, shall 
be found in arms against the United States, or othericise aiding or abetting 
their enemies or opposers, within any district to which it relates, and shall be 
taken by the forces of the United States, shall be either detained as prisoners 
for trial on the charge of treason or sedition, or other crimes or ojfences, 
which they may have committed whilst resisting the authority of the United 
States, or may, according to the circumstances of the case, be at once placed 
before a court-martial to be dealt with according to the rules of tear in respect 
to unorganized and lawless armed bands not recognized as regular troops, or 
may be discharged on parole not to serve against the United States, nor to aid 
or abet their enemies or opposers." 

What an enemy is we all know ; the books have taught us that ; but who 
knows what is an "opposer?" Does it mean one acting in political opposi- 
tion to the ruling power in the Government — the Republican party? It may 
well mean that, and full as appropriately as anything else. Does not the 
very introduction of such a new word, in connection with the crime of treason, 
sufficiently indicate some sinister purpose ? Why should such an unusual, 
undefined, undefinable word be used, but in the hope that the military satraps 
would give to it the very construction indicated ? In the estimation of the 
getters-up of this bill, there is probably not many things better deserving pun- 
ishment than opposition to their party rule. In debate they glorified their 
magnanimity for permitting freedom of debate in the Senate, and allowing 
Senators to censure their proceedings. What a contrast to the English House 
of Lords and House of Commons, permitting, without any such self-glorifica- 
tion, Chatham, Fox, Burke, and others, freely to denounce the war against 
our rebellious fathers, and openly pray for the defeat of the British armies. 
" Resisting the authority of the United States." What does that mean ? 



A REVIEW OF THE ARGUMENT, ETC. 275 

If a citizen should say of this bill, after it has passed, that it is unconstitu- 
tional, -would that be resisting? — would that be " sedition?" 

" Unorganized, lawless armed bands." What does that mean? where shall 
we find the signification of those phrases ? Are not all armed rebels " lawless 
bands ? " So they have always been understood to be. If they are not meant, 
then what is meant by " lawless bands ? " Here, again, the selection of loose 
phraseology enhances the suspicion of a sinister purpose. 

"Dealt with" is well enough in common parlance, or ordinary composi- 
tion, and, in the connection here used, would have a well understood and most 
terrible significance, but is wholly inappropriate in a legal enactment order- 
ing capital punishment. It is usual and decent for such laws to say whether 
it shall be by strangulation, beheading, or shooting, and not leave that delicate 
matter to Jack Ketch, even though he may wear an epaulet, or even two 
epaulets. 

" Section 6. No sentence of death pronounced by a court-martial upon any 
person taken in arms as aforesaid, shall be executed before it has been sub- 
mitted to the commander of the -military department within which the con- 
viction has taken place, or to the Commanding General of the Army of the 
United States, who shall either approve the judgment of the court-martial, 
commute the sentence, or may discharge or pardon the person so sentenced." 

The whole pardoning power is conferred by the Constitution upon the Pres- 
ident, and it would seem that no capital punishment should ever be inflicted 
without his having a reasonable opportunity to interpose with the nation's 
mercy. So the matter has always been treated by our courts. It is a power 
which the President himself can neither abdicate or deputize ; yet these 
blunderers are trying to take it away, and give it to our generals. If they 
exercise it according to the usage of other satraps, it will prove to them a 
most lucrative power. 

This bill takes no sort of care as to the composition of the courts-martial. 
It would seem but reasonable that a citizen, when tried for his life, should 
have the privilege of a court, composed of officers from his own State, if to be 
conveniently had, that the trial should be had in the district where the offence 
was committed, that it should be public, and that he should have compulsory 
process for his witnesses. But, above all, an American citizen should have 
the privilege of being tried by his countrymen, and not by foreigners. None 
of these essentials are attended to. A citizen can be ordered to death by a 
court composed entirely of foreigners. Indeed, they are the description of 
officers most apt to be selected by a vindictive, tyrannical commander, for 
they have already shown their alacrity in dealing with opposers of the Gov- 
ernment in a manner entirely to suit the taste of such a commander, and the 
probable taste of the contrivers of this infamous bill of infamies. 

It would be some consolation to the bereaved family and sorrowing friends 
of a victim of martial law, to know that he had some show of fair trial before 
a court of his countrymen, instead of a packed court of Germans. It would 
also be right, when the accused is a foreigner, that he should have the privi- 
lege of a court de midiatate linquce. 



276 HABEAS CORPUS. 



CHAPTER XVI. 

HABEAS CORPUS. 

ISTo. I. 

February, 1862. 

The vindication of the President's side of tins subject lias 
at length fallen into the hands of most unquestionable legal 
ability. The venerable and eminent Horace Binney has pub- 
lished a carefully prepared pamphlet of fifty-eight pages in 
vindication of the President's right to suspend, or of his right 
to disregard the privilege of the writ of habeas corpus. Li 
doing this, he is not merely personally discourteous toward 
Judge Taney, but quite free in imputation upon the character 
of Madison and the Congress of 1792. He also imputes to 
those " men of great acuteness" who deny this right the biased 
influence of their "political opinions" in favor of democracy, 
and "an acquired prejudice against Presidential power," "be- 
cause it carries power in 'that direction which is against the 
gulf stream of legislative authority, the great channel of the 
popular will of the moment." After such free invitation by 
example, he will neither be surprised or offended if his readers 
recollect or notice his frank showing of his own politics as 
some explanation of his own novel and most peculiar opinion. 
The pamphlet leaves no need for relying on popular imputa- 
tion, that he is of that old school of ultra Federalists who 
looked upon Alexander Hamilton, if not with perfect rever- 
ence, at least with implicit confidence in his political infalli- 
bility. This, too, in despite his known predilections for the 
English Constitution, as the very best that ever was or could 
be made ; — and despite his attempt in Convention to give us 
in addition to a Senate for life, a President for life, with an 
absolute veto on all acts of Congress, and a suspending power 



HABEAS CORPUS. 277 

over all passed acts ; whilst the Governors of the different 
States were to be appointed by the General Government, with 
negative or veto power on all State legislation. He speaks of 
the " greatly preponderant strength" of Congress over that of 
the President as " the vice of the Constitution." AMiilst yield- 
ing it no word of commendation for supposed excellence, nor 
using toward it any expression of devotional affection, he ob- 
trudes upon his reader a warm eulogium on the English Con- 
stitution. Does he not force upon his reader the surmise, that 
his bias in favor of strong government may have influenced 
this his effort so materially to enlarge the power of the Execu- 
tive? "With due deference, this is not the proper mode to 
amend the Constitution. As said by Washington, " let there 
be no change by usurpation." What is alteration or amend- 
ment, not obtained in the regular mode, and merely through 
the insidious instrumentality of false construction, but usur- 
pation ? 

The reader, however, cannot foil to accord this new cham- 
pion the tribute of admiration for intrepidity in thus periling 
so large a reputation in his effort to give us a stronger Govern- 
ment. 

" The 'privilege of the ivrit of habeas corpus shall not be suspended, 
unless when, in cases of rebellion or invasion, the public safety may 
require it.'' 

The privilege mentioned in this clause of the Constitution 
is that of an imprisoned or detained person to be brought be- 
fore a legal tribunal, to be discharged, bailed, remanded, or 
tried without arbitrary delay. 

By which of the three departments of Government the sus- 
pension may be made, Mr. Binney says " is the question of the 
day." 

It is a question now for the first time raised, after the Gov- 
ernment has been in operation for more than seventy years. 
Heretofore it was so unanimously understood that the power 
belonged to Congi-ess as to prevent even the mooting of any 
such question. This common opinion has been afiirmed by 
the express declaration of the Supreme Court, by all the com- 
mentators, by all our jurists and statesmen who, by action or 



278 HABEAS CORPUS. 

otherwise, ever intimated an opinion on tlie subject. It is also 
confirmed by the fact, that, after thorough research, those who 
dispute the opinion have not adduced the least intimation of 
even a contrary doubt heretofore expressed by any lawyer or 
statesman. Nevertheless, the apologists or defenders of the 
President who now venture to question the soundness of the 
opinion insist that it is still open for revision, and challenge 
discussion. It is the present purpose to present a brief, con- 
densed view of the subject, sufficient, as is supposed, to answer 
this new champion. 

There is a short process by which to eviscerate the very gist 
of the question, which seems not yet to have been applied, 
simple and obvious as is that process. Let us suppose the 
Constitution wholly silent on the subject, saying not one word 
about the writ or its suspension : where then would have been 
the power to suspend ? Ko intelligent, candid man, will pre- 
tend that it would not be clearly, indisputably with Congress, 
or that by any possible fair construction the power could be 
assigned to the President. 

This conceded, then let it be remembered that the clause is 
a restrictive^ not an enabling one. Without the restriction. Con- 
gress would have had plenary power, untrammeled discretion 
over the writ. It could have created the writ or not at its plea- 
sure ; suspended or wholly repealed it out of existence when- 
ever and as often as it thought proper. 

Here, then, this fall power, this full discretion over the writ, 
was what had to be restrained to accomplish the plain purpose 
of the clause ; that is, placing the citizen's privilege of using 
the protection of the writ upon a surer, more permanent basis 
than it stood in England, where it rests upon the untrammeled 
discretion of Parliament. Who, then, was intended to be re- 
strained by this clause ? Surely not the President, who, under 
such silence of the Constitution, would have had no possible 
control over the writ in any circumstances w^hatever. There 
could be no necessity to restrain his power when he would 
have none to be restrained. Full surely it must have been in- 
tended to restrain Congress, which alone and exclusively would 
have had the power. 

If this plain ^dew needed confirmation, it could be found in 



HABEAS CORPUS. 279 

a cotemporaneous discussion in the Virginia Convention. 
Patrick Henry contended that tlie restrictive or proliibitory 
clauses created by implication powers not specially given, con- 
trary to the assertion of the advocates of the Constitution, that 
the Government would have no power but what was specially 
granted. He referred to the habeas corpus clause, and said: 
" It results, clearly, that if it had not said so, they could have 
suspended it in all cases whatever." Governor Randolph, to 
whom the country is more indebted for the Constitution than 
to any other member of the Federal Convention except Charles 
Pinckney, answering Henry, said : " Gentlemen, suppose from 
the negative restrictions that Congress is to have powers by 
implication. I will meet them on that ground. I persuade my- 
self that every exception here mentioned is an exception, not 
from general powers, but from the particular powers therein 
vested. To what power is the exception made to the importa- 
tion of negroes ? Not from a general power, but from a par- 
ticular power expressly enumerated. This is an exception from 
the power given of regulating commerce. He asks where is 
the power to which the prohibition of suspending the habeas 
corpus is an exception. I contend that, by virtue of the power 
given to Congress to regulate the courts, they could suspend 
the writ. This is therefore an exception to that power." And 
so he goes on as to each of the restrictive clauses, showing it 
to be an exception to a specially granted power. 

The clause must therefore be considered as addressed to 
Congress, and to no other department, saying in effect you 
shall not exercise your power of suspending the privilege of the 
■writ, unless when, in cases of rebellion or invasion, the public 
safety may require it. 

Knowing that the writ would have to be created by legisla- 
tion, and that nothing but legislative power could repeal or 
suspend, that is, partially repeal such legislation, it must ne- 
cessarily be the Legislature that was intended to be controlled. 
Knowing that the President would have no legislative power 
or suspensory power over legislation, the clause could not have 
been intended to restrain him. If the intention had been to 
confer on him the suspending power, they well knew the indis- 
pensable necessity for doing so by a plain, unambiguous grant. 



2S0 HABEAS CORPUS. 

Siicli grant would have been so contrary to popular opinion as 
to good government derived from English precedent, and to 
the whole theory of the Constitution, and it would have been 
such an anomaly in a government of separate departments, 
that the necessity must have occurred to every one for making 
the grant in the plainest language. The absence of any such 
language is ample disproof of any such intention. 

Wlien the negation of a power, but in an excepted case, car- 
ries with it permission to exercise the power in the case ex- 
cepted, surely the permission results to him whose power is so 
restricted. When a specific abstraction is made from a Con- 
gressional power, it must retain all the power not abstracted. 
Or, if one of its powers is reduced to its exercise in a specified 
case, it necessarily retains its power to the extent of that case. 
Nothing but the plainest language could properly transfer the 
residuum to the President. There is absolutely nothing upon 
which to imply such grant to him. Even if there was some 
plausible basis for such implication, still, as said by the Su- 
preme Court, " it is certainly against the general theory of our 
institutions to create great discretionary powers by implica- 
tion." Gelston vs. Hoyt, 3 "Wliean, 246. Indeed, according 
to both the theory and letter of the Constitution, it is more 
than doubtful whether the President has any implied power 
properly so called, the whole class of incidental, inferential, or 
auxiliary powers, " necessary and proper for carrying into exe- 
cution" " the power vested in him," being expressly given to 
Congress by the general clause of section 8, article 1. This 
was fully proved by "Webster, Calhoun, and others, in the debate 
on Jackson's protest. It has also been frequently so decided 
by the Supreme Court in reference to the vast jurisdiction con- 
ferred by the Constitution on the judicial department, none 
of which can be exercised but when and as Congress directs. 
A parity of reason makes all those decisions equally applica- 
ble to the executive department. 

This plain view ought to settle the question satisfactorily to 
the plainest and most astute intellects. !N^o amount of sophistry 
can cloud with the smallest doubt the process by which the 
result is attained. 

Mr. Binney, whilst overlooking this decisive view, contends, 



HABEAS COUP US. 281 

because it is not said distinctly, explicitly, who shall exercise 
the power, it must go to that department to which its exercise 
most appropriately belongs by the general scheme of the Con- 
stitution, and hence infers that "the power appertains exclu- 
sively to the President." 

After an elaborate history of the writ, and of the adoption 
of this clause into the Constitution, he takes infinite pains to 
prove the trustworthiness of a President over Congress, and 
his better adaptation to the exercise of such power — thence 
inferring, because it ought to have been given to him, it must 
be construed to be so given in the absence, as he insists, of 
sufficiently manifested intention to the contrary. The whole 
of his argument to prove this superior fitness of a President, 
if it need answer, is full}' answered by the only Id stance occur- 
ring in our history where there was a diiference of opinion 
between Congress and the President as to the necessity of sus- 
pending the writ. It occurred during the time of President 
Jefferson, when Congress decided contrary to his opinion, that 
there was no need for a suspension, and the result proving 
that Congress was right and he was wrong. This only exam- 
ple in our national experience induces no undue confidence in 
Presidential infallibility, for it will be a most rare accident 
that will ever give the nation a President of more eminent 
ability than Jeflersou. But the argument needs no answer. 
It matters little what he or we may think as to which of the 
two was the more suitable depository of the power. "What he 
had to prove was that the members of the Convention thought 
as he does, and then that would have afforded some semblance 
of an argument in favor of his new invented version. But this 
he does not even attempt. Ko one knows better than he the 
perfect truth of the constrained admission of Messrs. Lincoln 
and Bates, that the Constitution was framed in " special dread 
of the unity of power," that is, of Executive power. This being 
so, he is not only deprived of all gain to his argument from 
that imputed superior fitness of a President, but the argument 
turns against him with peculiar force from the great import- 
ance he would evidently have attached to the fact if it had 
been really such as to suit him. That he knows the Conven- 
tion did not participate in his predilections for Executive power, 
36 



282 HABEASCORPUS. 

but were governed by an opposite feeling, by " a special dread" 
of such power, is clearly inferable from his pamphlet. He speaks 
of the "greatly preponderant strength" of Congress over that 
of the President as "the vice of the Constitution ; " and cites 
with approval the opinion of the English novelist, Bulwer, 
that our Government exhibits " the feeblest Executive perhaps 
ever known in a civilized community." He even permits him- 
self to say: "Jealousy of that office during the earlier part of 
the Convention, and in certain States before the adoption of 
the Constitution, was a topic with those who did not wish any 
Constitution or Union ; hut for sixty years, at least, it has been 
beyond any sensible man s power of face to profess it gravely." 

Such an affirmation, from such a man, at such a juncture, 
ought not to go without an emphatic contradiction and refu- 
tation, though every "sensible man" may know, or fancy he 
knows, that it has not the slightest foundation in fact. Whilst 
a perilous warfare is waging against the Constitution, and a 
powerful conspiracy going on for accumulating all power into 
the hands of the President, the published sayings of such a 
man, having direct tendency to aid that warfare and conspir- 
acy, ought not to be overlooked because of their harmlessness 
if uttered in other times, or only to men of intelligence. 

It would be worse than tedious, it would be useless, to mul- 
tiply proof in negation of his assertion. Let a few example 
specimens of the superabundant proof suffice. In 1826, when 
an annual disbursement of five or six hundred millions, and 
the patronage arising from a military and naval force of near 
seven hundred thousand men was anticipated by no one, a 
committee of the Senate, composed of such men as Benton 
and Van Buren, said : 

" Patronage will penetrate this body, subdue its capacity of 
resistance ; chain it to the car of power, and enable the Presi- 
dent to rule as easily and much more securely with than without the 
nominal check of the Senate. "We must look forward to the time 
when the nomination by the President can carry any man 
through the Senate, and his recommendation can carry any 
measure through Congress ; when the principles of public 
action will be open and avowed — the President wants my vote 
and I want his patronage. What will this be but the govern- 



HABEAS CORPUS. 283 

ment of one man; and what is the government of one man 
but a monarchy ? " 

In 1840, "Webster in his Richmond speech said that, in his 
judgment, " it has come to be true, in the actual working of 
our Government, that the Executive has increased its influence 
and patronage to such a degree that it nmj counteract the will 
of a majority of the people. I believe that the power and 
patronage of the Executive not only has increased, is increasing, 
but ought to he diminished. * * * Perhaps it remains to be 
seen whether the framers of the Constitution had not better 
have given less power to the Executive, and taken all the in- 
conveniences arising from the want of it, rather than hazard 
the granting of so much as might provg dangerous, not only to 
the other departments, hut to the safety and freedom of the country 
at large.'' 

During the same year, Clay, in his Hanover speech, said : 
"Modern democracy has reduced the Federal theory of a strong 
and energetic Executive to practical operation. It has turned 
from the people and their immediate representatives, the natu- 
ral allies of genuine democracy, to the Executive ; and, instead 
of vigilance, jealousy, and distrust, has given to that depart- 
ment all its confidence, and made to it a virtual surrender of 
all the powers of Government. The recognized maxim of 
royal infallibility is transplanted from the British monarchy 
into modern American democracy, and the President can do 
no wrong. The new school adopts, modifies, changes, re- 
nounces, renews opinions at the pleasure of the Executive. * 
* * The sum of the whole is that there is but one power, 
one control, one will in the State. All is concentrated in the 
President. He executes, according to his pleasure or caprice, 
the whole powers of the Commonwealth which have been ab- 
sorbed and engrossed by him. One sole will commands and 
predominates this vast community. If this be not practical 
despotism I am incapable of defining it. The existence or 
non-existence of arbitrary government does not depend upon 
the title bestowed upon the chief of a State, but upon the 
quantum of power he possesses or wields. * * * How is 
it possible for public liberty to be preserved, and the constitu- 



284 HABEAS CORPUS. 

tional distribution of power among the departments main- 
tained, unless the Executive career be checked and restrained." 

What were the encroachments, usurpations, and develop- 
ments of Presidential power so loudly complained of by "Web- 
ster and Clay, in comparison to those we are now daily witness- 
ing ? Yet this venerable writer has the " face " to say, "it is 
beyond any sensible man's power of face to profess gravely any 
jealousy of the Presidential office." It may reqmre no special 
"power of face" for an old-fashioned Federalist to avow his 
predilection for a strong Government ; but it ought to require 
no little to impute to all those among the fathers of the Repub- 
lic, who professed jealousy of the Presidential office, a want 
of friendship for the Constitution and the Union. The proba- 
bility is, that fully nine-tenths of the nation felt that j ealousy. 
It ought not to give offence to any of the living, to express the 
belief to those dead fathers, that such was their devoted at- 
tachment to the Constitution and the Union, that few or none 
of them would ever have attempted to alter the Constitution 
by false construction. That none of them would ever have 
proved so disloyal to the Union as to aid in the destruction of 
that Constitution which constitutes its chief value. They 
would not have encouraged latitudinous construction at a mo- 
ment of popular frenzy, when public sentiment sets so strongly 
against all barriers to the accumulation of Presidential power. 
Their fealty to party creed, or theory of best government, 
would have yielded to loyalty to the Constitution and the 
Union. They certainly never would have given aid and com- 
fort to the destructives, whilst the Constitution is in a death 
agony under their gigantic clutch, and when there is apparently 
neither moral or physical power in the nation to loosen their 
grip. 

Mr. Binney contends that the power and duty of making 
arbitrary arrests, pertains to the Executive during the suspen- 
sion of the writ, and that therefore there is a peculiar fitness 
in his having also the power to suspend. Though it seems not 
to have occurred to him, yet it will to all his intelligent read- 
ers, that his assumed fact furnishes the most conclusive reason 
against his construction. The office of the writ is to protect 
the innocent against arbitrary arrests by any one, which proves 



HABEAS CORPUS. 285 

in practice, in accordance with rational presumption, almost 
exclusively — nine cases in ten, at least — a protection against 
Executive abuse of power. How preposterous then, how con- 
trary to all analogies of the Constitution, to suppose it to have 
been intended to leave it to Executive discretion to remove 
this, to him, obnoxious restraint upon his power. In England, 
they trust to the King an absolute veto, the power of war and 
peace, the appointment of all officers, and the creation of an 
unlimited number of hereditary legislators, but do not trust him 
with discretionary power over the sacred protection of this 
WTit — it is confided to Parliament alone. The framers of 
our Constitution, influenced by "special dread" of Executive 
power, and by a still higher appreciation of the value of that 
protection, and uninfluenced by English example, would not 
trust an unrestricted discretion over it to any one, not even 
the legislative department. Influenced by such high apprecia- 
tion of the protection, and such manifest jealousy of all offi- 
cials in regard to it as to prohibit its suspension, except in 
time of invasion and rebellion, and only then, even " ivhen the 
public safety may require it,'' it could not have been intended to 
give the power of determining when the public safety did so 
require to one, the very one, the only one of the whole nation, 
who would be under the personal bias of deciding in his own 
favor and relieving his o"uti power from an irksome restraint. 
That, as Daniel Webster would have expressed it, " would be 
placing the sacred kid under the paw of the lion." Who dare 
impute such worse than folly to the framers of the Constitution ! 

So rife was the jealousy of the Executive power in the na- 
tional mind, that the Congress of 1792, composed, in large part, 
of members of the Convention, would not trust even to AVash- 
ington to determine when a rebellion had become too strong 
for the civil authorities, but required that fact to be first deter- 
mined by a United States Judge before the President was 
allowed to use the militia in its suppression. Such, also, is 
believed to be the almost uniform tenor of State les-islation on 
the subject, as it has also been of English legislation. 

According to the theory of our written Constitutions, it be- 
longs to the Legislature, generall}-, to determine Avhat ought 
to be done, and command what shall be done, and to the ju- 



286 HABEAS CORPUS. 

dicial and executive departments to cany tlie command into 
effect. A power in the Executive to determine that the privi- 
lege of the writ ought to be suspended, and to order its sus- 
pension, is subversive of this fundamental principle. It would 
be the introduction of a discordant anomaly. The avoidance 
of such an anomaly is strong reason against implying or pre- 
suming intention to grant such power. 

Another reason against the lodgment of such power in the 
President is, that he might be a sympathizer with the rebels, 
if not an instigator of the rebellion. The fact may not, prob- 
ably has not, actually occurred, but it is notorious that the last 
President was strongly suspected, and if Congress, just before 
the expiration of his term, had suspended the writ, the power 
of doing what was to be done would not have been confided 
to him or his subordinates, but to the judiciary and its subordi- 
nates. The Constitution gives the power to confer the ap- 
pointment of "inferior oflicers" upon the courts, and to those 
inferior officers would have been assigned the defined duty of 
doing whatever was intended should be done under the sus- 
pension. The President has, ex-officio, no power of arrest, 
nor any power whatever toward suppressing rebellion, except 
such as Congress chooses to give, and the whole of which 
Congress can, at any moment, take away. The writer's chal- 
lenge, made months ago, for the production of a single instance, 
before the advent of President Lincoln, of even an atempt by 
any President or State Governor, to exert the power of arrest, 
has not been answered. Most probably it never will be an- 
swered, as the attribution to the President of any ex-officio 
power of arrest, is a thing altogether new and of very recent 
invention. At common law, in certain cases of notorious 
felony, every citizen had a right to arrest, for the purpose of 
carrying the accused before the nearest magistrate for commit- 
ment ; and if our Constitutions have not abrogated this right, 
the President has it as a citizen, but not, ex-officio, as part of 
his official functions. He can, as an officer, only exercise the 
power when, and as Congress shall direct. 

Mr. Binney, if correctly understood, contends that the Con- 
stitution itself suspends the writ, or, which is the same, per- 
mits it to be treated as suspended, upon the happening of the 



HABEAS CORPUS. 287 

concurring facts of a rebellion and of a peril to public safety 
requiring its suspension. This is a most obviously illogical 
conclusion, from the mere words of the clause, and there is 
certainly nothing elsewhere in the Constitution to aid that 
conclusion. The clause is restrictive, with a sort of negative 
pregnant exception to its prohibition, carrying an implied per- 
mission to suspend. This implied permission unavoidably in- 
volves the idea that something has to be done to carry out or 
act upon the permission ; that is, something besides the 
Constitution will be required to create a suspension. Other- 
wise, if the intention was that the Constitution itself should 
make the suspension upon the happening of the contingency, 
it would have plainly said so, by adding to the clause some 
such words as these — "and thereupon the privilege of the 
writ shall stand suspended." The permission given, is un- 
equivocably to suspend, not to treat it as suspended, conse- 
quently it could not have been supposed that the Constitution 
itself made the suspension in p7'esenti, to be carried out in fii- 
turo. So far as the permissive power of the clause goes, in 
saying the privilege shall not be suspended except on a named 
contingency, it says nothing, more or less, than would follow 
the equivalent words, ^^ the privilege may he suspended" upon 
the named contingency. Yet, if the latter had been the words 
used, the most caviling criticism could not deny that they re- 
ferred to something de hors the Constitution, which must be 
done to create the suspension. "WTiat that something was, 
could admit of no doubt with the Convention. There being 
neither writ nor the privilege of the -wi-it when the Constitu- 
tion was made, they had to be given by legislation, and as the 
Legislature alone can repeal or suspend a legislative act, they 
knew that the suspension could only be made by Congress. 
Unless, indeed, they really meant to confer a dispensing power 
on the President. But they knew that such power was held 
in abhorrence by the nation, its usurpation having cost the head 
of one English king and the throne of another, and therefore 
could not have so intended. If they had so intended, then 
every dictate of common sense prudence would have induced 
the making the grant of such power in the plainest, least am- 
biguous terms. They never would have left such an obnoxious 



288 HABEAS CORPUS. 

power, such an inevitable cause of contention to rest on any- 
doubtful construction. 

A power to disregard tbe privilege of tbe writ is a very dif- 
ferent thing from a power to suspend the privilege. The former, 
if permitted, might be exercised by the Executive ; but the 
latter cannot, because it involves the exercise of legislation. 

The distinction is so obvious, that, if the former had been 
intended, the Constitution would have plainly said that, in the 
given case, " the President may disregard the privilege of the 
writ." 

It is agreed on all hands that the clause is a prohibition on 
Congress, except in case of necessity, against permitting any 
disregard of the privilege of the writ. What sense can there 
be in such prohibition if the Constitution itself gives that per- 
mission to the President ? Yet that absurdity is involved in the 
attempt to deduce a grant of power to him from a clause not 
even naming him, and which is merely a restraint upon or an 
exception from Congressional power. That the suspending 
power is a joint concurrent power in Congress and the Presi- 
dent is an absurdity, involving a probable if not necessary con- 
flict of jurisdiction, of which the Constitution is nowhere guilty. 
Both departments cannot at the same time have a purely dis- 
cretionary power over any subject, without the result in prac- 
tice being a mutual nullification to greater or less extent, or at 
least without very certain collision. 

As contended by Mr. Binney, the mere fact of rebellion is 
of such public notorious character as to permit its ascertain- 
ment by almost any functionary. But the rebellion must be 
of such perilous character to the public safety as to require a 
suspension of the writ, and that is a matter about which there 
may well be diflerence of opinion among even the wisest and 
most disinterested. English precedent, the national feeling of 
the day, as also that of the members of the Convention, all 
concurred in pointing to Congress as the only safe and appro- 
priate depository of the trust for determining that question, 
and in pointing to the Executive as the least trustworthy or 
appropriate. Such was the popular prejudice against any con- 
trol over that sacred, cherished privilege, that the people of 



HABEAS CORPUS. 289 

Virginia declared in tlieir Constitution : " The privilege of tlie 
writ of habeas corpus shall not in any case be suspended." 

The result is, that the long established construction is the 
true one, and that Congress alone has the power to suspend 
the writ. When Congress exercises that power, it is to be 
hoped that it will carefully say for how long the suspension 
shall last, what powers shall be exercised during the suspen- 
sion, and by whom they shall be exercised, conforming as near 
as may be to the requirements of the Constitution for protect- 
ing the citizens against arbitrary or vindictive persecution. 
Since the publication of the writer's review of the Attorney- 
general's opinion, he has met with nothing in print sustaining 
the ground of that opinion requiring special notice, and there 
is, therefore, no need for his prolonging the discussion. It is 
due to Mr. Binney to say that he has done nothing to damage 
his high character, professional and private, by any direct 
approval of the Attorney-general's opinion, or by seeking from 
the law of war any aid to his own construction. 

No. n. 

A RESPONSE TO MR. BINNEY. 
July, 18G2. 

In reply to the writer's last pamphlet on this subject, Mr. 
Binney, a Philadelphia writer, quotes the following passages 
therefrom : 

" There is a short process by which to eviscerate the very 
gist of the question, which seems not yet to have been applied, 
simple and obvious as is that process. Let us suppose the Con- 
stitution wholly silent on the subject, saying not one word about 
the writ or its suspension, where then would have been the 
power to suspend ? I^o intelligent, candid man will pretend 
that it would not be clearly, indisputably, with Congress, or 
that by any possible, fair construction the power could be 
assigned to the President. 

" This conceded, then let it be remembered that the clause 
is a restrictive and not an enabling one. "Without the restric- 
tion Congress would have plenaiy power, untrammeled discre- 
tion over the writ. It could have created the writ, or not, at 
37 



290 HABEAS CORPUS. 

its pleasure, suspended or wholly repealed it out of existence 
whenever and as often as it thought proper. 

" Here, then, this full power, this full discretion over the 
writ, was what had to be restrained to accomplish the plain 
purpose of the clause ; that is, placing the citizen's privilege 
of using the protection of the writ upon a surer, more perma- 
nent basis than it stood in England, where it rests on the un- 
trammeled discretion of Parliament. Who, then, was intended 
to be restrained by this clause ? Surely not the President, who, 
under such silence of the Constitution, would have had no pos- 
sible control over the writ in any circumstances whatever. 
There could be no necessity to restrain his power when he 
w^ould have none to be restrained. Full surely it must have 
been intended to restrain Congress, which alone, and exclu- 
sively, would have the power." 

Upon this, Mr. Binney comments thus: "This objection is 
both pertinent and important. It was not overlooked in the 
preceding tract (his first pamphlet), but left for assertion and 
proof. If it is sound it materially disables the argument which 
regards the habeas corpus clause as a grant of authority. The 
objection is an affirmative one, and put upon the writer who 
makes it the duty of proving it. The objection is not proved 
at all ; " that is, the assertion that in the supposed silence of the 
Constitution Congress would have had full power is assumed, 
not proven. This criticism is just. It was not proved because 
it was presumed to need no proof, and would not be denied by 
any lawyer — least of all by Mr. Binney, who had magnified 
the necessity for a power in the Government to make the sus- 
pension. 

Having sufficiently rebuked the present writer for assuming 
instead of proving the proposition, he ex-gratia condescends to 
its disproof. In his attempt at this he makes the f Uowing 
most surprising affirmations : " The Constitution gives no such 
power to Congress as a poiver to regulate the courts.'' "The 
judicial power of the United States does not depend at a?Z upon 
the discretion or regulating power of Congress." " The appel- 
late jurisdiction of the Supreme Court is the only subject to 
Avhich the power of regulation by Congress applies." 

These strange affirmations are apparently based mainly upon 



HABEAS CORPUS. 291 

the fact, tliat tlie Constitution does not use the word regulate 
in conferring the Congressional power over the courts ; and that 
their jurisdiction being prescribed by the Constitution, it can 
neither be enlarged or curtailed by Congress. Such ras'h de- 
duction, from such premises, was perhaps never before made 
by a man of such intelligence. 

^^ Congress shall have power to constitute tribunals inferior to the 
Supreme Court." " The judicial power of the United States 
shall be vested in one Supreme Court, and in such inferior 
courts as Congress ma^ from time to time order and establish." 

These brief words cover the whole subject. Their elucida- 
tion depend upon the meaning of "to constitute a tribunal," 
and of to " establish a court." That meaning cannot be better 
explained than as done by Mr. Binney. He says : 

" It clearly can mean nothing else, than to erect judicial 
tribunals or courts, and to give them such constitution and 
organization as will enable them to exercise the judicial powers 
vested in them. The mere erection of a tribunal by name is 
nothing. The erection of a court, and vesting jurisdiction and 
judicial power in it, would be nothing without more. A judi- 
cial tribunal is not constituted unless it is endowed with the 
active powers which are necessary to the exercise of its judicial 
powers. It must have the means of bringing parties before 
it, and to enforce its judgments and decrees. It must have 
the power of issuing writs, of committing its mandates to offi- 
cers to be executed, in just such kind, number, and variety as 
its judicial powers demand." 

All this he admits Congress has the power, and contends, 
furthermore, that it is its imperative duty to do. Yet he carps 
at the expression used by Governor Randolph, "the power 
given to Congress to regulate the courts," as "indefinite lan- 
guage," not warranted by the Constitution, it not having used 
that very word regulate, though by this, his own showing, it 
has used its perfect equivalent. By that showing, the power 
to "constitute tribunals" carries with it as ample power to 
regulate them as if the word had been used, and the clause 
had read to " constitute and regulate tribunals." In addition, 
Mr. Binney well knows it to have been always held by the Su- 



292 HABEAS CORPUS. 

preme Court, that the inferior courts can exercise no power, 
except such as is given them by Congress. 

Judge Story says (3 Comm. 254) : "But the same reason did 
not apply to the inferior tribunals. These were, therefore, left 
entirely to the discretion of Congress as to their number, their 
jurisdiction, and their powers. Experience might and proba- 
bly would show good grounds for varying and modifying them 
from time to time. It would not only have been unwise, but 
exceedingly inconvenient, to have fixed the management of 
these courts in the Constitution itself, since Congress would 
have been disabled thereby from adopting them from time to 
time to the exigencies of the country." In Turner vs. Bank 
(4 Dai's, 8), the Supreme Court said, that the disposal of the 
judicial power, except in a few specified cases, belongs to Con- 
gress. Again, in United States vs. Hudson (7 Cranch, 32), the 
Court said as to the inferior courts that they "possessed no 
jurisdiction but what was given them by the power that created 
them," that is, by Congress. 

All this being well known to him, it is marvelous how Mr. 
Binney could make the unqualified assertion that " the Con- 
stitution gives no such power to Congress as a power to regulate 
the courts.'' An ill-natured critic would hold him to these 
words, and punish him with their iteration. But that being 
no part of the present purpose, he having said words in this 
new pamphlet entitling him to lenient treatment, notwithstand- 
ing his defection from conservatism, it will be confessed that 
most probably the words do not convey his real meaning. 
What he meant was that an unstinted power to regulate does 
not, as he afterward more distinctly contends, carry with it 
the power to destroy the courts and their powers. "What he 
ought to have meant, but which he probably did not, was that 
the power did not carry with it the right to destroy — about 
which he will be talked with further along. The stalwart 
blows he gives in defence of the spirit against the strict letter 
of the Constitution, and in vindication of civil liberty, whilst 
making his chivalrous attempt to prove that, without the habeas 
corpus clause, Congress would have had no power to suspend 
the writ, are worthy of those palmy days when no suspicion 
of defection from the great cause of conservatism had ever 



HABEAS CORPUS, 293 

soiled him. If he can do so well in favor of the spirit against 
the letter, we cannot hut sigh after those ponderous blows he 
would deal in defence of both letter and the spirit plainly com- 
bined. We cannot help a regretful feeling at the absence of 
that aid to which we are so clearly entitled. 

If the writer had any disposition that way he would be 
estopped by his own words from gainsaying Mr. Binney as to 
the dutiful obedience which should be yielded to the spirit of 
the Constitution, even when not expressed in direct language. 
In his review of the argument of the President and Attorney- 
general Bates, he said : 

" The argument says that Congress has the power, not the 
right, at any time to repeal the act giving the courts power to 
issue the writ, but attempts no use of that fact in illustration 
of the President's assumed power ; and therefore the matter 
needs no comment. But it may be well to say, that whilst 
this is true, it is equally true that such repeal would be a 
gross abuse of power, being contrary to the spirit and mean- 
ing of the Constitution, which are as much to be observed 
as its letter ; for incontestably the Constitution contemplates 
that Congress shall always furnish the writ for protection to 
citizens, except when, in cases of rebellion or invasion, it may 
think public safety requires a suspension of that protection. 
Every sound statesman and lawyer will agree that a wilful vio- 
lation of the manifest spirit of the Constitution is morally as 
bad as an infraction of its plain letter." 

The case of Martin vs. Hunter amounts to nothing more 
than affirmance of the otherwise sufficiently explicit mandate 
of the Constitution to vest the judicial power in the courts, 
which the court says, " Congress could not, witliout a violation 
of its duty, have refused to carry into operation." This does 
not, in the least, impugn the other decisions, that the courts 
must wait the performance of this duty before they can exer- 
cise their constitutionally defined jurisdiction, nor does it mili- 
tate against the naked power, apart from the right, in Congress 
to violate the whole or any part of this duty. As said by 
Judge Story, it is an absolute power over the subject, unavoid- 
ably left to the discretion of Congress. Not whether the 
mandate should be obeyed, but as to the how and the when 



294 HABEAS CORPUS. 

this discretion unavoidably accompanied the power, not the 
right, to disobey. The distinction between power and right, 
is obvious to every one, yet Mr. Binney, intentionally or unin- 
tentionally, so confounded them as to make it difficult to get at 
his precise meaning. For instance, he says Congress " cannot 
effectually omit to do what it is commanded to do by the Con- 
stitution;" and yet, immediately afterward, he says, "it may 
omit to do the right thing, but it violates the command of its 
creator, by so omitting, and brings on the destruction of its 
own being." What he means by the destruction of its own 
being, is not understood. He surely does not mean that a 
temporary repeal of the writ of habeas corpus would necessarily 
involve that destruction. 

This thing of the legislative department refusing or omitting 
to obey the mandate of the Constitution is by no means a 
novelty in our system. According to the writer's recollection, 
the Supreme Court has detected more than one instance to 
prove that Congress has never yet enabled the courts to exer- 
cise the whole judicial power. 

A notable instance of a failure of the Legislature to obey 
an express command of the Constitution occurred under the 
former Constitution of Kentucky-, which expressly commanded 
the Legislature to provide for bringing suits against the Com- 
monwealth, yet, during the sixty years of its existence, this 
command was never obeyed. 

Suppose Congress omits this duty, where is the remedy? 
Who is to enforce the mandate — who to supply the omission ? 
Disobedience to a command of the Constitution is wholly un- 
like, in this aspect, a violation of its prohibitions. For the 
latter there is remedy, through the other departments ; for the 
former there is none. It is idle, therefore, to deny the mere 
abstract power, without reference to the right. 

Mr. Binney says it is not an untrammeled power, because it 
is trammeled by the duty referred to. If he means morally 
trammeled, he is right ; but, when we speak of an untram- 
meled Congressional power, we mean one that has no avail- 
able, effective legal trammel, and such is the power to regulate 
the courts. 

The power has been so repeatedly exercised, with the ex- 



HABEAS CORPUS. 295 

press sanction of tlie judiciary, and the undoubting approval 
of everybody else, that it is no longer open to denial. Who- 
ever wants to limit the power, for any available puii^ose, must 
point out the express limitation in the Constitution. This 
Mr. Binney does not attempt to do, but contents himself with 
referring to certain abuses of the power which would be a 
violation of the spirit of the Constitution, the result of which 
being merely a moral censure on Congress, leaving such abuses 
to have full effect, without any legal check. 

Sixty years ago, Congress thought proper to repeal out of 
existence the whole then batch of inferior courts, and establish 
others in their place. Suppose this had been done b}^ two 
different bills, and that, after passing the repealing bill, some 
casualty had, for months, prevented the passage of the other, 
the establishing bill ; that fact would not have impaired the 
legal validity of the repealing act. 'No judge would have 
been mad enough to attempt to exercise his repealed powers. 

At the time of the abolition of imprisonment for debt, it was 
a prevalent opinion in the profession that there was no other 
suificiently efficient remedy to enforce the payment of debts. 
Suppose that opinion to have been indisputably correct, would 
such gross abuse of power in leaving the courts without the 
proper remedial process upon so important a subject have in- 
validated the act repealing to ca sa ? No court would have 
dared to use that or any equivalent process. 

IsTotwithstanding his own scathing castigation of all such 
latitudinarians, Mr. Binney at least, it would seem, though 
others do not, deems an anonymous writer in the National In- 
telligencer, last summer, justifying the Presidential usurpation, 
as some authority on a constitutional question. That writer, 
according to recollection, claimed the power of Congress to 
repeal the writ out of existence, not merely in the absence of, 
but in despite the clause, and made that fact a main basis of 
his argument. 

Mr. Binney attempts to bring to his aid what he deems a 
developed opinion of the members of the Convention that the 
clause was an enabling, not a restrictive one. He says : 

" When the vote in Convention was taken, while upon the 
division of the clause, the delegates were unanimous in affirm- 



296 HABEAS CORPUS. 

ing the first member of it — ' the privilege of the writ of habeas 
corpus shall not be suspended.' The three States of North 
Carolina, South Carolina, and Georgia voted against the second 
member — 'unless when, in case of rebellion and invasion, the 
public safety may require it.' Could they have voted against 
the latter clause under the impression that the general and 
unlimited power was already given to Congress ? There is no 
rational interpretation of the vote but that the first member 
was declarative of a general prohibition of the power, and a 
confirmation of the general principles of Magna Charta, of the 
petition of right, and of all that had been previously declared, 
and that the second member granted power to the General Gov- 
ernment in the excepted cases." 

Yes, there is another rational interpretation, and one much 
more rational than his. That is, the three States wanted an 
unqualified, whilst the others wanted a qualified prohibition of 
the exercise of a power which they all knew that Congress 
would have over the writ. If they did not so know, why the 
unanimous vote in favor of the first member of the clause, 
which is purely restrictive, and has nothing enabling about it ? 
It could have had no purpose to restrain any supposable power 
in the President ; for even Mr. Binney admits that without the 
whole clause, the enabling latter member, he would have had 
no power over the subject. They must have meant to restrain 
Congressional power, for there was no other power to restrain. 
If the last part had been voted down the prohibition would 
have been unqualified. Now, then, this exposition of the views 
of the members by their votes, so far from subserving his pur- 
pose, operates in the directly opposite way. It is the strongest 
possible, most satisfactory proof so derivable, that they unani- 
mously thought Congress would have the power unless pro- 
hibited. 

The very language of the clause is, if possible, still stronger 
proof If meant as a qualified prohibition, it is apposite and 
appropriate, whilst it is wholly inartificial and inappropriate as 
a grant of power. K a grant to the President had been in- 
tended, some such language as the following would have been 
required, and certainly used : " The President may suspend," 
etc., or he " may treat the privilege as suspended." When we 



HABEAS CORPUS. 297 

find sucli different language used, it is irrational and illogical 
to contend that the clause is an enabling one, intended to give 
the power to the President. 

Mr. Binney permits himself to say, " there is not a word 
like restriction or limitation in the first member of the clause," 
though it says, " the pri\'ilege shall not be suspended." If this 
be not restriction^ in the name of common sense, what is ? K 
he means a quibble upon the slight difi'erence in this respect 
between the meaning of restriction and prohibition, he con- 
tends for a distinction without a difference. The clause, viewed 
as a modified prohibition, is to all intents a qualified restriction. 
It equally presupposes a power somewhere, to be prohibited. 
There being no power anywhere to suspend any law, especially 
the law creating the writ, except in Congress, the intention 
must have been to prohibit Congress, which would be equally 
as full a recognition of the otherwise untrammeled power of 
Congress over the writ. Either way, the argument of Mr. Bin- 
ney is "materially damaged."* 

As to the idea that without the clause Congress would have 
no power, because of the absence of specific grant, to suspend 
the writ, an old-school Federalist must lose the cunning of his 
school before he can find any difliculty in proving the power 
to suspend to be an appropriate necessary and proper incident 
to the power to suppress insurrection or repel invasion. If the 
suspension of the right to freedom from arbitrar}^ arrest, and 
all remedy for the violation of the right, be an inseparable or 
necessary accompaniment to such incidental power, he would 
gulp that also with a clear conscience. 

Mr. Binney seems at last to be awakened to the recollection 
of the great importance of the writ, and speaks of it as the 
"principal bulwark of liberty," "the great fundamental law 
of human liberty," " the inestimable right of personal liberty." 
Now, when, as everybody knows, and as the President and 
Attorney-general distinctly admit, the Constitution was made 
in "special dread" of the Executive power, it is contrary to 

* In the first pamphlet, p. 33, Mr. Binney says: "For the reason that the 
clause is directly restrictive, the committee to revise the style and arrangement, 
place it in the ninth section of the first article, which is restrictive from 
beginning to end." 

38 



298 HABEAS CORPUS. 

every rational presumption to suppose an intention to make 
the President the custodian or special guard of that bulwark. 
To repel that presumption the language must be strong, une- 
quivocal, which no one can pretend the clause to be, as a yield- 
ing of such power to the President. He reaffirms and reargues 
to prove the President to be the most suitable and trustworthy 
guardian of the sacred trust. The writer reaffirms his owfi 
position, that the President is the least suitable, the least trust- 
worthy functionary of the whole Government ; but, instead of 
rearguing the matter, he will do vastly better by adopting-the 
language of Daniel Webster, than whom the country has pro- 
duced no higher authority on constitutional questions. The 
following quotation is from that most perfect specimen of pure 
eloquence ever uttered in our language, his denunciation of 
the one-man power : 

" The spirit of liberty will not permit power to overstep its 
prescribed limits, though good intent, patriotic intent, come 
along with it. This is the nature of constitutional liberty : this 

IS OUR LIBERTY. 

" The contest for ages has been to rescue liberty from the grasp 
of Executive power. Whoever has engaged in her cause has 
struggled for the accomplishment of that object. On the long 
list of the champions of human freedom there is not one name 
dimmed by the reproach of advocating the extension of Ex- 
ecutive power. On the contrary, the uniform, steady purpose 
of all such champions has been to limit and to restrain it. 

" Through all this contest for liberty, Executive power has 
been regarded as a lion that must be caged. So far from being 
the object of enlightened popular trust, so far from being con- 
sidered the natural protection of popular righl, it has been 
dreaded as the great object of danger. 

" Who is he so ignorant of the history of liberty, at home 
and abroad — who is he from whose bosom all infusion of 
American spirit has so entirely escaped — as to put into the 
mouth of the President the doctrine that the defence of liberty 
naturally results to Executive power, and is its peculiar duty ? 
Who is he that is generous and confiding toward power where 
it is most dangerous, and jealous of those who can restrain it? 



HABEAS CORPUS. 299 

Who is lie that, reversiug the order of State, and upheaving 
the base, would poise the pyramid on its apex ? AVho is he 
that declares to us, through the President's lips, that the 
security for freedom rests in Executive authority ? "Who is he 
that belies the blood and libels the fame of his ancestry, by 
declaring that they have invoked Executive power to the pro- 
tection of liberty ? Who is he that thus charges them with 
the insanity or recklessness of thus putting the lamb beneath 
the lion's paw ? No, sir ; no, sir ; our security is in our watch- 
fulness of Executive power. 

" I will not acquiesce in the reversal of all just ideas of gov- 
ernment. I will not degrade the character of popular repre- 
sentation. I will not blindly confide where all experience 
admonishes to be jealous. / ^vill not trust Executive j^ower, 
vested in a single magistrate, to Iceep the vigils of liberty. 

" Encroachment must be resisted at every step. "WTiatever 
the consequence, if there be an illegal exercise of power it 
must be resisted in a proper manner. We are not to wait till 
great mischief comes — till the Government is overthrown, or 
liberty itself put in extreme danger. We should not be worthy 
sons of our fathers were we so to regard questions affecting 
freedom."* 

* Henry Laurens, the Ambassador of the United States, who vras captured 
on his way to Holland, and detained a prisoner in the tower of London for 
two years, kept a journal of his mission, which was published, and is to be 
found in a book the title of which is, perhaps, " South Carolina State Pa- 
pers." The writer has not seen the book, but states from the information of 
a gentleman who has recently read it. 

Laurens says that after his release from prison the English officials treated 
him with great courtesy. At the table of Lord Shelburne, the then Premier, 
he was the honored guest among a large company of magnates. After din- 
ner, the conversation turning upon the separation of the two countries. Lord 
Shelburne remarked to him, "I am sorry for your people." "Why so?" 
asked Laurens. "They will lose the habeas corpus." "Lose the habeas 
corpus!" "Yes; we purchased it with centuries of wrangling, many years 
of fighting, and had it confirmed by at least fifty acts of Parliament. All this 
taught the nation its value, and it is so ingrained into their creed, as the very 
foundation of their liberty, that no man or party will ever dare trample on it. 
Your people will pick it up and attempt to use it, but having cost them 
nothing, they will not know how to appreciate it. At the first great internal 



300 HABEAS CORPUS. 

The result thus far is, that the writer was accurately correct 
in assuming that without the habeas corpus clause Congress 
would have had plenary power, untrammeled discretion over 
the writ. Mr. Binney himself by this time will be sufficiently 
sorry that he ventured to call for the proof, and, to relieve him, 
its development will not be further prolonged, not forgetting, 
however, to remind him that, according to his concession, his 
argument is thereby "materially disabled." 

To the emphatic denial by the writer of any ex-officio Presi- 
dential power of arrest, and his reference to the unanswered 
challenge made by him months before " for the production of 
a single instance, before the advent of President Lincoln, of 
even an attempt by any President or Governor to exert the 
power of arrest, Mr. Binney contents himself with responding : 
" The Louisville writer touched this point with only a short 
denial, without any attempt to prove the President's general 
incapacity to issue a warrant of arrest. * * * jf h^q clause 
intended to give him the power of suspension, the means ne- 
cessarily follow, if they did not exist before." Not so fast, 
Mr. Binney ; you cannot be permitted to slide over a difficulty 
quite so easy as that. The Constitution explicitly gives the 
courts the judicial power of the nation ; yet they themselves 
have uniformly held that the means to carry out the power did 
not necessarily follow, but they were dependent upon such as 
Congress might choose to give. So also as to the President ; 
he has no auxiliary or incidental power, but is dependent upon 
Congress for the grant of such means not expressly given as 
are necessary to carry out his constitutional power. This be- 
ing, therefore, no proof, and he offering no other, the inference 
is that he is without proof to maintain the President's power 
of arrest. The consequence is, that if validity were allowed 
to his novel crotchet as to the Presidential power of suspension, 
it would amount to nothing, would not be worth contending 

feud that you have, the majority will trample upon it, and the people •mil 
permit it to be done, and so will go your liberty." 

All history affords no higher evidence of sagacity, and no statesman's pro- 
phecy, eighty years in advance, was ever nigher complete fulfilment than by 
the daily transpiring acts around us. 



HABEAS CORPUS. 301 

for, he had just as well be compelled to wait for a Congres- 
sional suspension. 

The inference is that Mr. Binney thinks the President has 
no cx-officio power of arrest, or he would have tried to prove it, 
and not have resorted to such fallible, make-shift argument. 
He must know that the fact of the want of such power is very 
damasfine: to his main argument. For how would the matter 
thus stand? The Convention, knowing that he had no power 
of arrest, and that all incidental or auxiliary powers were con- 
fined to Congress, Mr. Binney's construction would convict 
them of the bungling folly of attempting without actually con- 
ferring the power of suspension — an arrest, according to him, 
being the only mode of suspension. The fact of suspension 
requiring an arrest before it could occur, the Convention would 
have conferred the suspending power upon some department 
having the power of arrest, or have expressly conferred that 
power on the President, in plain words, and not left it to be 
discovered for the first time seventy years after the Constitu- 
tion was made, and require the discovery to be maintained by 
one of the most subtle arguments ever penned. If Mr. Binney 
had not fortunately lived till now the discovery never would 
have been made. 

Mr. Bullitt having produced, in his instructive and very able 
pamphlet, such a long roll of eminent judges, lawyers, and 
statesmen, including such names as Marshall and Story, who 
have expressly held the suspending power to be in Congress, 
justifies the belief that the roll, if completed, would amount 
to more than a hundred, whilst there are none, not one to the 
contrary. These opinions, repeated without contradiction 
from the birth of the Constitution steadily on down to the 
present day, amount to a fixed, settled construction, fully as 
authoritative as an express decision of the Supreme Court. 
The position of the President and Attorney-general not having 
been indorsed by a single respectable lawyer, notwithstanding 
the daily proof that " thrift follows fawning," and Mr. Binney's 
construction, notwithstanding the great ability of its defence, 
having so signally failed of acceptance, it would seem to be 
the duty of all to acquiesce in the old, original construction 
of seventy years duration, as the only true one. 



302 HABEAS CORPUS. 

In answer to the writer's suggestion that Congress could 
give all needful power during a suspension to officers ap- 
pointed by the courts without conferring any of it upon the 
President, Mr. Binney says : " It is preposterous to suppose 
that somebody, not the President, may be selected by Con- 
gress to execute the power." The proof he gives is this : " The 
doctrine that Congress can in any event choose another Execu- 
tive when the President is in office is revolutionary." If in- 
tended as a slap at his Representative, Stephens, who claims 
the power to appoint a dictator, it is well enough ; but if he 
means that the conferring such power on inferior officers ap- 
pointed by the courts, then his reason is ludicrously " prepos- 
terous." The Constitution having said, " Congress may vest 
the appointment of such inferior officers as they think proper 
in the courts," and not having restricted the powers to be 
conferred on such officers, nothing can be more ridiculously 
preposterous than that the exercise of such plain power for 
such purpose is "revolutionary," or that it is equivalent to 
choosing another President. All that is required to effect the 
object of suspension is some enlargement of the powers of 
arrest and detention, with which, ordinarily, the President has 
nothing to do. They appropriately belong to the judicial de- 
partment. Yet sudh is his jealous affection for Executive 
power that he cries out against so small an enlargement of the 
appropriate power of the judicial department as "revolution- 
ary," as equivalent to choosing another President. It might 
well happen that a President will be, if not in league, in strong 
sympathy with a rebellion, and, therefore, not fit to be trusted 
with the powers necessary during a suspension. To deprive 
Congress, in such a state of case, of all right to select any 
other as the recipient of the trust Avould be a suicidal emascu- 
lation of the Government. 

This means of depleting the overgrown, enormous patronage 
of the Executive should have been resorted to long ago. There 
is now a pressing need for its immediate application in the 
mode of appointing the collectors under the enormous tax- 
bill. The appointment of officers to money trusts should never, 
when avoidable, be left to political party influence, experience 



HABEAS CORPUS. 303 

having sliown that most of those appointed under that in- 
fluence become defaulters. The appointment of the col- 
lectors should be vested in the District Courts, as also that of 
their supervisors, to whom the collectors should be required to re- 
port twice, and with whom to make a settlement once a month, 
subject to the revision of the Auditor of the Treasury. This 
arrangement, with power in the District Courts promptly to 
enforce the requisitions of the supervisors, would probably 
save many millions to the nation. It would also relieve the 
overburthened President from an irksome duty, which no one 
knows better than himself it is impossible for him to perform 
in a manner satisfactory to himself, or beneficial to the nation. 
Before taking final leave of Mr. Binney, he is entitled to 
thanks from the conservatives, which the wi'iter will take upon 
himself to pay in their behalf. He says : " The scope of the 
Constitution is to protect, defetid, and secure the blessings of lib- 
erty universally and without exception, unless an exception is de- 
clared in the instrument." " The power ultimce necessitatis 
does not exist in this limited Government." These noble 
words deserve to be inscribed in letters of gold on the capitol, 
and on every conservative banner in the next campaign against 
the destructives. They are words that desponding patriots 
have long, impatiently listened for from him. Let him still 
wear his proud plume as "head of the American bar." Let 
not his "flushed covey" attempt to pluck a down from that 
plume. Let his crotchet about the suspending power pass 
into oblivion. Let this be no part of his otherwise beautiful 
biography. Let it not mar his enviably clean epitaph. So 
long as he adheres to those noble words, he is still worthy to 
lead our profession when doing its devoir against the higher- 
law men, the law-of-necessity men, the paramount-law-of-war 
men, and in defending the Constitution against the traitorous 
war now waged by fanatics for its destruction. He will aid us 
whilst teaching the nation, in his own language, that "the 
habeas corpus is the principal bulwark of liberty," "the great 
fundamental law of human liberty," and also in teaching the 
value of " the inestimable right of personal liberty." He will 
aid us in reminding the nation, in the choice language of the 
recent incomparable speech of Mr. Thomas, of Massachusetts, 



804 HABEAS CORPUS. 

that " THE Constitution itself is the salus populi, as it is 

ALSO THE SUPREMA LEX." 

Mr. Binney is also entitled to thanks for having " flushed 
and put upon the wing the covey of reviewers from the Phila- 
delphia bar," which very able covey, it is hoped, have enlisted 
for the war, and will give the country many other manifesta- 
tions of such decided abilit3^ It has been the proud boast of 
the profession, both in England and in this country, that in 
every contest for liberty it has always led the van, whether 
in assault or defence. Before folding their wings and settling 
back into that apathy from which it seemed so difficult to 
arouse them, will they not do what they can to make that 
vaunt good in this hour of liberty's utmost need ? "Will they 
not aid in arousing the profession throughout the country ? 
Will they not take jurisdiction over that delinquent son of 
Pennsylvania, her most prominent Representative, and ad- 
minister justice upon him? It is he who shamed her as much 
as if she had given birth to an Arnold, a Floyd, or a Twiggs, 
by being the first native American base enough to immortalize 
his own infamy, by affirming in the councils of the nation, that 
Congress has power to appoint a dictator over this free country. 

Surely the people of Pennsylvania will teach this man the 
penalty for thus shaming her. Surely they will tell him, that 
he is the only Pennsylvanian who does not feel and will not 
say with Shakspeare, "I had as lief not be as live to be in awe 
of such a thing as I myself," and who would not as " soon 
brook the eternal devil as a dictator" in this country. 

A fanatic Senator had the unblushing effrontery the other 
day to boast in the Senate, that he was not to be tied by the 
Constitution, that he meant to usurp whatever power he chose 
to think necessary for carrying on the war. The meaning of 
which is, that he means to usurp whatever he deems necessary 
for the accomplishment of his fanatical pui^ose. This worst 
of all treason, this wilfully perjured treason against the Con- 
stitution, we shall have to arraign at the great bar of the na- 
tion, and obtain from the people a verdict of attainder against 
the traitors. To this traitor an admirable Senator has already 
administered the following excellent rebuke : 

" The great question before the world to be now settled by 



HABEAS CORPUS. 305 

US is, can we sustain the integrity of our Government, and 
perpetuate our institutions, and do it according to the limita- 
tions and provisions of the Constitution ? That is, to show 
that our Constitution is competent to the trial, and nothing 
short of that. K, when this occasion arises, we are compelled 
to resort to means which, in efiect, are the means used by 
stronger Governments, our experiment is a failure. If we are 
constrained to call up, invoke, and put in exercise in any one 
department of the Government — it is immaterial in what de- 
partment of the Government — more of power, more of force 
than the Constitution provides, or than is limited by the Con- 
stitution — the moment we do that, or are constrained from 
our supposed necessities to do it, we acknowledge before the 
world that our institutions are insufficiently founded, and that 
we are after all compelled, in the period of trial, to resort to 
the force, which, they say, is necessary to the existence of a 
nation, and our experiment is a failure. * * * It is vain and 
idle in us to war against a part of our people because they 
have made war upon this Government, if we at the same time 
have to sap the foundations of the Government by stabbing 
through the vitals of the Constitution. 

" It will not do to say, that because we need to do this thing, 
because it is necessary in our judgment, we will do it for that 
reason. The limitations and prohibitions of power in the Con- 
stitution were put there on purpose to prevent our doing such 
things when we wanted to do them. They were not put in to 
prevent • our doing things we never wanted to do. When it 
provided, for instance, that you should not pass any attainder 
bill, that you should not take away any man's property without 
due process of law, that no man should be punished unless it 
was on conviction by a jury, that no man should be twice pun- 
ished for the same offence — prohibitions of this kind are pro- 
hibitions to everybody, and they were put in to prevent Con- 
gress doing such things when they wanted to do them. They 
were put in there on purpose to prevent us doing these things 
when we thought they were necessary. They were not put in 
to prevent our doing these things when we did not want to do 
them, and when they were not necessary at all in our judgment." 
39 



306 HABEAS CORPUS. 

Let US defeat these destructives before tlie people. Let us 
preserve tlie Constitution, and silence tlie jubilant shouts of 
the despots of Europe, the English press, the English reviewers, 
and the English speakers, over its supposed destruction, over 
the supposed failure of the " model Republic. " 

A last word with Mr. Binney. Tradition tells an anecdote 
of "Washington in his younger days, which is deemed to fur- 
nish the highest illustration of true manhood that he ever 
gave. He was knocked down by a gentleman for an insult he 
had given. They were parted. Meeting a few days after- 
ward, and whilst the gentleman was bristling up in expecta- 
tion of a hard fight, Washington approached him with a smile 
and an open hand, saying, " Sir, I come to beg your pardon." 

Should this suggest to Mr. Binney the propriety of an amende 
toward his conservative countrymen, whatever he offers will 
be worthy of himself — it will not be less than his active aid 
in maintaining the verity of his own words : " The scope of 
the Constitution is to protect, defend, and to secure the bless- 
ings of liberty, universally and loithout exception, unless an ex- 
ception is declared in the instrument. The power ultimce 
necessitatis does not exist in this limited Government." What 
will not that aid be worth if he suffer his heart to be revivi- 
fied, rejuvenated to its pristine love for the Constitution — the 
pure loyalty of an old-time patriot ? The Constitution is in 
im.minent peril from the war that fanatics are waging for its 
destruction. It is even in greater peril than the Union. Let 
us not, in solicitude for the lesser, overlook the greater, the 
more important danger. We of the profession, the appointed 
and sworn defenders of the Constitution, should stint no 
peaceful effort for its preservation. If destroyed now, there 
can be no rational expectation of restoration. Its death will 
be without redemption or resurrection ; " no Promethean heat 
can its light relume." Like violated chastity, after repeated 
unresisted, unpunished violations of the Constitution, its purity, 
its loveableness, its sanctity, its claim to affectionate, willing 
obedience, will be all gone, and gone forever, without even 
the possibility of restoration. Shame, shame, a thousand 
shames upon us, if we permit its destruction without manful 
resistance ! Those of us who have "fallen into the sere and 



HABEAS CORPUS. 307 

yellow leaf" will go on tliroiigli the remnant of our days in 
despondful mourning to unlionored graves, repeating the de- 
spairing sigh of the hroken-hearted Roman patriot whilst view- 
ing the results of dictatorial power: ^^Alas! liberti/, tJiou art 
but an empty name ! '' Younger men may live in repentance 
"beneath the legs" of some "huge Colossus" of tyranny, 
amidst the agony of national trials, to learn the value of that 
liberty they ignominiously suifered to be destroyed. 

Ko. in. 

• ACTS OF INDEMNITY. 

A brief notice of the hiU 2^endin(j before Congress 
Deoembkr 17, 1862. 

Retroactive legislation is the abhorrence of enlightened 
jurists and statesmen. Unsound in principle, bad in policy, it 
is almost unavoidably unjust in practice. According to the 
opinion of many of the wisest, it was the true intent of our 
constitutions to exclude such legislation under the prohibition 
against ex post facto laws. It has been an ever-increasing regret 
that a different construction was originally given by the courts 
to that phrase. Some of the modern State Constitutions have 
rectified that construction by expressly prohibiting retroactive 
and retrospective laws, whilst the courts everywhere have in- 
dustriously exerted all their ingenuity to restrict them within 
the narrowest possible limits. 

In Fletcher vs. Peck (6 Cranch, 135), the Supreme Court 
said, in reference to a State statute : " It may well be doubted 
whether the nature of society and government does not pre- 
scribe some limits to legislative power ; and, if any be pre- 
scribed, where are they to be found if the property of an indi- 
vidual, fairly and honestly acquired, may be seized without 
compensation? * * * To the Legislature all legislative power is 
granted ; but whether transferring the property of an individual 
to the public be in the nature of legislative power is well worthy 
of serious reflection. * * * How far the power of giving the 
law may involve every other power, in cases Avhere the Consti- 
tution is silent, never has been and perhaps never can be defi- 
nitely stated." 



308 HABEAS CORPUS. 

In Wilkinson vs. Leland (2 Peters, 657), tliat court also said : 
" That Government can scarcely be deemed to be free where 
the rights of property are left solely dependent upon the will 
of a legislative body, without any restraint. The fundamental 
maxims of a free Government seem to require that the rights of 
personal liberty and private 'property should he held sacred. At 
least no court of justice in this country will be warranted in 
assuming that a power to violate and disregard them — a power 
so repugnant to the principles of justice and civil liberty — 
lurked under any general grant of legislative authority, or 
ough to be implied from any general expressions of the will of 
the people. The people ought not to be presumed to part with 
rights so vital to their security and well-being, without very 
8^row^ a?ic? c^/rgc^ expressions of such intention." * * * "We 
know of no case where a legislative act to transfer the property 
of A to B has ever been held a constitutional exercise of legis- 
lative power in any State of this Union. On the contrary, it 
has been constant^ resisted, as inconsistent with just principles, 
by every judicial tribunal in which it has been attempted to be 
enforced." 

Judge Story (3 Com., 268) says : " It seems to be the gene- 
ral opinion, fortified by a strong current of judicial authority, 
that since the American Eevolution no State Government can 
be presumed to possess the transcendental sovereignty to take 
away vested rights of property." 

If the privilege of the writ of habeas corpus can only be sus- 
pended by Congress, according to the vastly preponderating 
opinions of judges and lawyers — nine-tenths at the least — then 
a violation of that privilege has given the person aggrieved by 
unlawful arrest or imprisonment a vested right to remuneration 
against the wrong-doer. Though this right is not property, yet 
it has an ascertainable pecuniary value, as much entitled to con- 
stitutional protection as a debt or any visible property. It is dif- 
ficult to conceive any right better deserving such protection 
than a freeman's claim to remuneration for arbitrary imprison- 
ment, in violation of the law of the State under whose pro- 
tection he lives. 

According to the express declaration of the Constitution of 
Kentucky, and the general tenor of all our other Constitutions, 



HABEAS CORPUS. 309 

govei'uments are instituted, among other things, " for the 
security and protection of property." 

Whence the power of Congress to take away or destroy tiiis 
vested right ? Xot from the siturned, repulsed habeas corpus 
clause. "WTiatever plausibility there might be in claiming it 
as a supposed incident to the power given by that clause, if it 
had been acted on, there is no pretext for such claim, when 
Congress has never suspended the writ ; and there is not, has 
not been any status of passed Congressional action to evoke 
the aid of any such incident. The only semblance of power 
in the Government to reach such past transaction, even collat- 
erally, is the pardoning power, which is limited to criminal 
proceedings in the Federal courts. The release of the wrong- 
doer's liabilit}^ to civil suit is the perfect equivalent, in all re- 
spects, to the taking the property of A. and giving it to B. 
Whence the power of Congress to do this ? It is in vain to 
invoke any implied, auxiliary power, — the ver}' words of the 
Constitution limiting Congress to the use of such as are not 
only necessary but also " proper." The authorities quoted show 
that the courts will never recognize such power as legitimately 
implied, as proper. In no rationally constructed republican 
Government can there ever be a right of indemnification to 
retroact for the purpose of iniquity. 

The act recently passed the House of Representatives under- 
takes to release or discharge Federal ofiicers from all criminal 
liability for the violation of the penal laws of the States, against 
wrongous imprisonment which they may have incurred by rea- 
son of the non-suspension of the habeas corpus. Whence the 
power to do this ? What control has Congress over the crimi- 
nal jurisprudence of the States ? The pardoning power of the 
Federal Government does not touch it at all, being confined 
exclusively to offences against that Government. Besides the 
whole of that power belongs to the President, and Congress 
has nothing to do with it, either directly or indirectly. 

If, according to the President and Attorney-general, what 
has been done in the matter of arbitrary arrests is by virtue 
of his Executive power in the exercise of his free discretion, 
in regard to which he is responsible to neither the legislative 
nor judicial department, — or if, according to another opinion, 



310 IIABEASCOflPUS. 

Ills power is derived from the habeas corpus clause to the exclu- 
sion of any concurrent power in Congress, — then he and his 
suboi'dinates must look to those his exclusive powers for his 
and their indemnity. Congress can have nothing to do with 
the matter. Any interference on its part would be not merely 
usurpation, but supererogation also. K the Constitution au- 
thorizes his and their acts, it is of itself their most ample in- 
demnity. Upon this view of the subject the President and 
Cabinet must have taken their stand. So let them remain. 
If in this they have committed an egregious blunder ; if their 
foundation falls from under them ; if they must have a humi- 
liating fall, so let them lie. Congress can now do nothing for 
their relief. Theirs will be an instructive and much needed 
example of the fate of those who ignorantly or wantonly at- 
tempt usurpation of power over the violated Constitution. 

In all this matter the motive of the President may have been 
pure ; it is by no means intended to af&rm that it was not ; but 
that is not true as to all his numerous subordinates, in their 
multitudinous arrests and extortions. With the many known 
instances of outraged liberty perpetrated by those subordi- 
nates, to give them all indiscriminately the absolution of an 
undiscriminating act of indemnity would be one of the foulest 
wrongs with which a party majority ever attempted to degrade 
a nation in an enlightened civilized era. The passage of such 
a bill would be an indelible stain on our national annals. 

The action of the English Parliament, in relieving the min- 
istry from responsibility for arrests made in anticipation of a 
suspension of the privilege of habeas corpus, affords no just 
analogy or proper precedent for this bill. What the Parlia- 
ment thus does is by virtue of its omnipotent power to modify 
or alter their so-called Constitution at pleasure. Thank God, 
we have no such omnipotent power in this country. There the 
indemnity is absolutely necessary to cure a violation of the 
law. Here it is altogether unnecessary, if the President has 
the power independently of the prior action of Congress ; and 
if he has not, Congress, not being omnipotent, has no power 
of absolution. Even lenient mercy must be looked for to the 
breasts of the jurors. 



HABEAS CO 11 PUS. 311 



No. lY. 

COMMENTS ON THE LATE ACT OF CONGRESS, " RELATING TO HABEAS 

CORPUS," ETC. 

Here is the first section of tlie act : " That during the pre- 
sent rebellion, the President of the United States, whenever in 
his judgment the public safety may require it, is authorized to 
suspend the privilege of the writ of habeas corpus in any case 
throughout the United States, or any part thereof; and when- 
ever and wherever said privilege shall be suspended as afore- 
said, no military or other officer shall be compelled, in answer 
to any writ of habeas corpus, to return the body of any person 
or persons detained by him by authority of the President; but 
upon a certificate, under oath, of the officer having charge of 
any one so detained, that such person is detained by him as a 
prisoner, under authority of the President, further proceedings 
under the writ of habeas corpus shall be suspended by the judge 
or court having issued the said writ, so long as said suspension 
by the President shall remain in force and said rebellion con- 
tinue." 

This is an attempt by Congress to transfer its legislative 
power over the privilege of the writ to the President ; indeed 
to transfer more power than it possesses. 

The suspension of law is its partial repeal, Avhich, to every 
intent, being a change of law, is as unequivocally legislation as 
is its enactment. The old familiar principle of the common 
law that a personal trust cannot be assigned or sub-delegated, 
has been adopted, and become an axiom of constitutional law 
also. Courts and commentators all concur, without a dissent, 
that neither department can transfer from itself to another any 
of its peculiar, appropriate powers or functions. This is a rule 
for uniform, perpetual observance, almost without an excep- 
tion. The alleged valid departures from it are only seemingly 
such, as will be found upon proper examination. There is no 
need for going into that examination here for the purpose of 
tracing the true boundary of the rule, the attempt here being 
no mere evasion, but a rude, rough effiart to burst through 
the rule. 



312 HABEAS CORPUS. 

This particular matter, tlie power of suspending this great 
privilege, affords no pretext for making it an exception, but 
the reverse. In the opinion of some of the most eminent 
fathers, it was a fault in the Constitution to allow any suspen- 
sion of the privilege. Being of such inestimable value, having 
cost so much in its acquisition, and its suspension being so cer- 
tain to be abused, with no absolutely certain corresponding 
benefit, it was supposed best by them for a Republic that, at 
whatever inconvenience, its non-suspension should be a per- 
manent, inflexible principle of the Government. Aided by 
the light of recent experience, the considerate will be far from 
saying it is altogether clear that this was not the better opinion. 
The proved inefficiency of attempts to dragoon this nation into 
unmurmuring acquiescence in an unpopular, impolitic policy 
of the Administration, with the manifested sensitive national 
jealousy of everything like arbitrary arrest or imprisonment, 
gives ample room for the doubt whether the mischief of sus- 
pension will not always counterbalance its benefits. Though 
this opinion of those fathers was overruled by the majority, yet 
its force was felt, and therefore the discretionary power to sus- 
pend the privilege was deemed such a delicate, important trust 
as could be confided nowhere but to Congress, and even there 
only under special restriction. Hence the clause of the Con- 
stitution : " The privilege of the writ of habeas corpus shall not 
be suspended, unless when, in case of rebellion or invasion, the 
l^uhlic safety may require it." 

The whe7i, the where, the how long, and the how far, of every 
suspension, is each a delicate trust of great importance — so 
delicate and important, as to be properly confided alone to the 
integrity of Congress. As to the when, a need for suspension 
yesterday or to-day will not justify it prospectively, upon an 
unascertained or unascertainable necessity, that may arise 
months or years hence. It must be a present, existing neces- 
sity, the sufficiency of which Congress must judge. The mere 
fact of the present rebellion does not create that necessity, or 
Congress itself would now order the suspension. Its failure 
to do so is the equivalent of its expressed, deliberate opinion, 
that there is now no such necessity. There must be a new, 
very different state of case, before the President ought to make 



HABEAS CORPUS. 313 

tlie suspension under tlie act, according to any presunuible 
Congressional intention. Before a suspension can rightfully 
occur, Congress must pass upon that new state of case, and 
adjudge its sufficiency. If the act had said that, upon the hap- 
pening of this, that, or the other, there will be cause for sus- 
pension, leaving it to the President merely to ascertain and 
proclaim the occurrence of the hypothetical facts, there would 
have been plausibility in that mode of evasion, because nothing 
would be left to the discretion of the President in determining 
the sufficienc}' of those facts. 

So too as to the where and the lioiv long. A necessity in 
Louisiana would not authorize a Congressional suspension in 
Maine, nor a present necessity would not justify a prolonga- 
tion of the suspension for mouths after the necessity had 
ceased. 

The liotv far, like the when, the where, and the hoiv long, is 
also confined within what the public safety req^iires. A total 
abrogation, even temporarily, of the privilege of tlie writ for 
every purpose, was not contemplated, but only for such pur- 
pose or in such cases as the "public safety" would require. 
For instance. Congress cannot by its own direct action, so far 
suspend the privilege of the writ as to debar a father or a hus- 
band from its use in recovei'ing the custody of wife or child. 
Yet this is what Congress is attempting to confer on the Presi- 
dent the power to do. The power to suspend in "any case" 
is a power to suspend in every case, in all cases. It needs not 
that the suspension in any particular class of cases shall even 
tend to promote the public safety. It may have the opposite 
tendency so plainly as that the President could not pretend 
ignorance of such opposite tendency, yet by this act he may 
suspend in such class of cases. It needs not that he should 
apply the power only to eases of treason, or suspected treason- 
able intent ; he may equally apply it for the purpose of im- 
properly abridging the freedom of speech or of the press, or 
to prevent "a free exercise of religion," or to abridge the 
" right of petition." This is all wrong; it for transcends Con- 
gressional power. The object to be attained is the public 
safety. The means thereto must be " necessarv and proper," 
40 



314 HABEAS CORPUS. 

or Congress cannot use them, mucli less authorize another to 
select them according to his whim or discretion. 

Here is the English Parliamentary form used in their acts 
for suspending the privilege of the writ : " Any person that 
shall be in prison by warrant of his Majesty's privy council, 
for high treason, suspicion of high treason, or treasonable 
practices, may be detained in safe custody without bail or 
mainprise, until," etc. We have no American precedents in 
that kind, except the bill which passed the Senate in 1807, not 
merely limiting the suspension to three months, but expressly 
confining it to cases of persons arrested by warrant of the 
President, or of a State Governor, charged on oath with treason, 
or other high misdemeanor endangering the public safety. 
When the Senate came to devise this bill, its intelligent and 
very distinguished draftsmen saw at once that the English 
form would not do here, our Constitution having prohibited 
the issuing of any warrant " hut upon probable cause supported 
hy oath or affirmation,'' and therefore confined the suspension to 
cases of persons " charged on oath." They found it necessary 
to depart from the English precedent in another particular. 
Wishing to embrace some of the cognates of treason, instead 
of using the loose phraseology of " treasonable practices," they 
said " other high misdemeanor endangering the safety of the 
United States." Thus loose as their own language was, still 
they distinctly recognized, as the obvious meaning of the Con- 
stitution, that the power of suspension only extended to cases 
involving the "public safety." By the power conferred on 
the President and Governors of States to make arrests, they 
recognize the principle that the President has ex-officio power 
to arrest, even during suspension, and that in confiding the 
power. Congress was not necessarily, or even appropriately 
confined to him, but might also confide it to others. 

It is lamentable that the ruling majority should have been 
ignorant of these Parliamentary and Congressional precedents, 
or reckless of their value and importance. Such recklessness 
destroys public confidence in Constitutional protection, in the 
rulino" majority in Congress, and tends to create murmuring 
discontent with the whole Government — a state of popular 
feelino- especially to be deprecated in times like these, when 



IIABEASCORPUS 315 

the Government needs the hearty, unanimous co-operation of 
all the people of the loyal States. 

As the Senate's hill so carefully ignored that part of the 
English precedent, which emhraces " suspicion of treason," 
much force is given to the douhts of intelligent men whether 
any case of mere suspicion could properly he emhraced. But 
the better opinion is the other way. The Constitution was 
framed in the light of English precedents and in direct refer- 
ence to them, as we are compelled to refer to those precedents 
to ascertain what it meant by suspension of the privilege of 
the writ. The Constitution, except so far as it has otherwise 
expressl}' provided, must be presumed to refer to what would 
then be understood in England from that phraseology. Besides 
suspicion of crime or intent to commit crime, is ground for 
arrest and detention at common law. Not arbitrary suspicion, 
such as an officer may allege merely because he chooses to sus- 
pect, but one sustained by formal charge, "supported by oath," 
and resting upon proven facts, which show a " probable cause" 
for the suspicion. On the hypothesis that suspension is a 
needful, necessary aid to public safety, a suspicion so sustained 
furnishes adequate justification for a temporary denial of bail 
and mainprise to the suspected, in analogy to the English 
precedent. 

If Congress could transfer its own discretionary power over 
the writ, eveiy dictate of prudence, policy, and duty required 
that it should not be done beyond the actual need of " public 
safety" in the present or any supposable future emergency. 
To go beyond that was uselessly to attempt the betrayal of a 
sacred national trust, there being no conceivable puqDose of 
national benefit to be subserved thereby, — unless, indeed, that 
benefit can be found in thus approximating that absolute dic- 
tatorship, for which some of the leaders of the ruling party 
avow their predilection as a national boon, and thus habituating 
the nation to the one-man power. But they should have remem- 
bered that, notwithstanding their predilection, the great bulk 
of the people are so besottedly mindful of the teachings of the 
fathers, as to view such dictatorship with perfect abhorrence 
and as the fellest doom that awaits our country, little if at all 
short of national perdition. Such purpose of so habituating 



316 HABEAS CORPUS. 

tlie national mind, furnishes tlie only conceivable mode of res- 
cuing the measure from the imputation of wanton, purposeless 
folly. 

Special limitation of the cases to which the suspension 
should apply was the more necessary here, because Secretary 
Stanton, by his order of 8th August last, had directed the arrest 
ioY punishment by a military commission of all the persons en- 
gaged in " disloyal practices ; " and the President, by his martial- 
law proclamation of 24th September, had done the same. If, 
when there was no legal suspension, they venture the exercise 
of such fearful power, it might well have been suspected that 
they would do no less under a suspension authorized by Con- 
gress, if not expressly restrained. They should have been 
plainly told what common sense and every enlightened jurist 
have always said, that martial law was not a necessary or per- 
missible incident of even a legal suspension by Congress. 
Power in the Executive to punish was never contemplated in 
England or this country as an incident of suspension, but merely 
the power of arrest and detention without bail. It cannot be 
too carefully inculcated that Congress cannot confer such power, 
and that the death of a citizen by sentence of a court-martial, 
under such an order of the Secretary or President, would in 
the eye of the law be nothing else than plain murder perpe- 
trated by the President, Secretary, and the members of the 
court. ITor can the power of detention without bail be used 
by the Government for indirectly punishing or preventing what 
it cannot directly punish or prevent, nor for abridging any of 
the guaranteed immunities of the people. The ruling party 
ought to have learned from the late elections, that martial law 
cannot be enforced in the loyal States without great peril of 
civil convulsion, great danger of armed resistance by the peo- 
ple. This act should have carefully said all that was necessary 
to remove public jealousy and apprehension as to any danger 
of a renewed attempt to enforce martial law in the loyal States. 
If that ruling party can see no sound policy in any attempt to 
conciliate rebels, they cannot be so blind as not to see the ne- 
cessity for conciliating the confidence, if not the affection, of 
loyalists toward the administrators of our Government. 

Having attempted to obtain for the President, their party 



HABEAS CORPUS. 317 

cliief, a standing army of tliree hundred thousand negroes ; 
having obtained for him an army and navy of some eight hun- 
dred thousand men ; having obtained for him an indefinite 
supply of money, with a fearful control over the commerce and 
business of the nation, through the power at will of expanding 
and contracting the currency ; having obtained for him and his 
subordinates Congressional absolution for all acts of illegal 
oppression against private rights ; having acquiesced in, if not 
ratified, all his usurpation, and made him the oblation of their 
entire subserviency ; having placed the whole militia under his 
orders freed from all control by the State Governments ; having 
obtained for him a conscription act which places every able- 
bodied man in the nation under his military control ; having 
allowed his military subalterns to stop the freedom of elections, 
to overawe and control the ballot-box ; having done so much 
to strengthen their main reliance, the corrupting influence of 
po"\A'er and patronage ; having done so much to make him the 
head of a consolidated imperial government ; having throttled 
the whole Government and holding the Constitution in a death 
agony, they lost all remembrance of responsibility and all fear 
of retribution at the hands of their masters, the people, and 
thus by a crowning perfidy attempt the surrender to him of the 
great palladium of liberty, leaving him the uncheckable arbiter 
of the liberty of every citizen in this great republic. 

The nation must cast olf the too long indulged lethargic 
slumber of a pernicious apathy. Whoever prides himself on 
being worthy the name of an American freeman ; whoever 
claims a responsive feeling to that noble sentiment of Patrick 
Henry, which should actuate every patriot, " Give me liberty^ 
or give me death ;" whoever would "rather die a freeman than 
live a slave," will need no incentive but the present exigency 
of our country to do what he lawfully and rightfully may to 
swell the voice of a grand national protest against the strides 
of this party to permanent absolute power — to the enslave- 
ment of our country. There is still great vitality, still much 
efficacy, in the popular sentiment of this nation. Witness the 
sudden stoppage of arbitrary arrests and secret imprisonments 
after the elections of last fall. Every duty to country requires 
of each citizen his aid in calling forth the free, bold, manly 



318 HABEAS CORPUS. 

expression of that sentiment. Let the nation tell the leaders 
of this party : If, with the unstinted aid of our twenty millions, 
you feel incompetent to put down this detested, ever detestable 
rebellion of five millions, without trampling out om- liberties 
under the iron heel of unconstitutional military rule, then stand 
aside, resign your positions, give the people an opportunity to 
elect men competent to that task, competent to national sal- 
vation, competent to the restoration of the Union under and 
by the Constitution. Lack ye still a stimulant to exertion, ye 
degenerate sons of liberty-loving sires ? then know that at least 
one of the most talented and influential leaders of this party 
in Congress has more than once had the impudent efirontery 
publicly, deliberately to claim a power in himself and his fan- 
atical colleagues, to give a master to this great nation of free- 
men — by a dictator of his and their appointing, to supersede 
the President, and all the other public servants of the nation's 
own choosing. In the light of this avowal, view and study the 
acts of this party, ye recreant sons, then hold back if you can. 

The fourth section of the act attempts to indemnify the Pres- 
ident and his subordinates against any suit or prosecution "for 
any search, seizure, arrest, or imprisonment made by his order." 
Having recently published in the Louisville Journal an argu- 
ment to prove the unconstitutionality of such an act of in- 
demnity, and that argument remaining unanswered in or out 
of Congress, it needs neither repetition nor enlargement. It 
will suffice for the present to say, that though it has been held 
the ex fost facto clause does not strictly apply to any but penal 
statutes, yet it is agreed by courts and commentators, that 
retroactive legislation is so repugnant to the whole spirit of 
the Constitution, that it will not be allowed to divest a vested 
right. A man's legal claim to remuneration for an illegal 
seizure, arrest, or imprisonment, is as much a vested right as 
any claim for debt or property. Congress has no more power 
to release the one than the other. 

The Federal Government has no power, by way of pardon 
or otherwise, over the criminal jurisprudence of the States; it 
can neither nullify their penal laws, nor absolve those who vio- 
late them. The attempt to do either is mere rank usurpation. 

The indemnifying acts of England proceed from the omnip- 



HABEAS CORPUS. 319 

otence of its Parliament, and are not, therefore, justifying pre- 
cedents for our Congress, which lias no omnipotent power, but 
only such as has been specially granted by the nation. 

No. V. 

A REVIEW OF PRESIDENT LINCOLN'S RESPONSE TO THE ALBANY 

MEETING. 

It is matter for no little gratulation to every lover of the 
Constitution, to every loyal patriot, that President Lincoln has 
thus placed in tangible form before the public what there is of 
reason, or its semblance, in support of his usurped power to 
abridge and punish freedom of speech and of the press. It is 
what he and his advisers in and out of the Cabinet have to 
present in his behalf at the bar of reason. Let not the flimsy 
and wholly inadequate character of the reasoning induce an 
inference of any deficiency in him or them. The fault is not 
theirs, it is not from any lack of capacity in them to do justice 
to the subject, for the argument is really as good, just as plausi- 
ble as any that has been, or can be, made on that side of the 
question. It is, however, so discursive and unmethodical as 
necessarily to impart much of the same quality to this brief 
notice of it. 

The first noticeable thing which it presents is his seizing 
hold of the fact stated in one of the Albany resolutions, that 
the great safeguards to free speech, free press, and personal 
liberty were adopted into the Federal Constitution after the 
close of the Revolution, for the sake of making what he no 
doubt deems a telling retort. He asks whether the demon- 
stration would not have been better, if it could have been truly 
said, that these safeguards had been adopted during our Revo- 
lution, instead of after its close. During the Revolution they 
could not have been so adopted into the Federal Constitution, 
for it then had no existence ; but those safeguards were taken 
almost verbatim from the Constitutions of several of the larger 
States which were made during the actual pendency of the 
Revolutionary war, and for the rule of government in an actu- 
ally existing civil war. As an exposition of the views of the 
framers of the Constitution, as a revolutionary authority to 



320 HABEAS CORPUS. 

prove that those safeguards were specially meant for times of 
war and civil commotion, the precedents from the Constitu- 
tions of those States are fully as authoritative as if the Federal 
Constitution itself had been adopted during the Revolution. 

To escape from those safeguards, he asserts that the military 
arrest, trial, and banishment of Mr. Yallandigham, was not a 
holding him to answer for a capital or otherwise " infamous 
crime," nor were the proceedings against him a "criminal 
prosecution." The effrontery of mere denial cannot go be- 
yond this. "What classification must a crime belong to which 
is not infamous, yet justifies its punishment by close imprison- 
ment for life, according to the sentence of the court-martial, 
or to banishment for life, according to the illegal alteration of 
the President ? He does not tell us, and ingenuity will waste 
its astuteness in any effort to ascertain. The whole burthen 
of his attempt to justify the punishment is by affirming that 
the speeches of Mr. Vallandigham were aiding and assisting 
the enemy, or, in other words, were ^wase treasonable — at least, 
they were the perpetration of moral treason. There being no 
legal punishment, as he wrongfully affirms, for the supposed 
offence, he makes the absence of all such law the very founda- 
tion of his claim to inflict the punishment. The Constitution 
having carefully defined treason, and precluded that engine of 
tyranny, constructive treason, and Congress not having, as he 
alleges, provided any penalty for such an offence, he under- 
takes, ex 'post facto ^ to create this new constructive treason and 
punish it by a penalty of his own enacting. Verily, Mr. Lin- 
coln, this is sad work you are making with our Constitution, 
if you prove that it gives you such latitudinous discretion to 
tyrannize over the liberties of your countrymen. As to his 
denial that Mr. Yallandigham's persecution was a " criminal 
prosecution" within the meaning of the Constitution, it must 
astound every man of sense. There is no denying that it is a 
criminal prosecution of some sort, and of course must fall 
within the broad, comprehensive prohibition of all prosecu- 
tions, except those legally made with the aid of jury trial. The 
only exception is that carefully made by the Constitution itself 
for the punishments, by military courts, of persons employed 
in the military service, the making of which exception conclu- 



HABEAS CORPUS. 321 

sivcly proves the intention to exclude any other. The tneory 
of the Constitution is, that it is far better crime shoukl go un- 
punished, than that its punishment should be entrusted to 
anybody but courts and juries. The recent glorious meetings 
of the people to protest against the punishment of Mr. Vallan- 
digham show that such is the national understanding, with a 
fixed resolve not to be robbed of their liberties by a destruc- 
tion of the Constitution. Mr. Lincoln should take heed how 
he disregards this national sentiment, or he may have a civil 
\yar at the IlTorth, in addition to that at the South. 

The Constitution says, " excessive bail shall not be required, 
nor cruel and unusual punishments inflicted." What say you 
to this safeguard, Mr. Lincoln ? You cannot deny that the 
punishment you have inflicted here, for the exercise of free 
speech, is unusual, nor can you properly deny that it is cruel 
also, or if you do, then it can only be by affirming that the 
punishment is barely commensurate with the heinousness 
of the offence. But if such be the character of the offence, 
then what becomes of your other plea, that it is not an "infa- 
mous crime." If this newly invented crime, this constructive 
treason, is so thinly divided from actual treason as in foro 
conscientioe to require so dire a punishment as life-long im- 
prisonment or banishment, it surely must be an "infamous 
crime." As actual treason is by common consent the most 
infamous of all crimes, all its proximate congeners, such as 
this, must partake largely of that infamy. Your countrymen 
generally give you credit for doing all you could, by your 
usurped legislative and judicial authority, to brand Mr. Vallan- 
digham and his children with the infamy of a convicted traitor. 
Without reference to the personal hardship of such a sentence, 
with right-minded men such damage to character is an infa- 
mising punishment ; and, such being the punishment, the crime 
if so punished, must be " infamous " also. It was precisely to 
prevent such oppression in time of war or civil commotion, 
by party majorities in Congress or by party chiefs in the Presi- 
dential chair, that those safeguards were placed in the Consti- 
tution. 

Mr. Lincoln adopts and bases his defence mainly upon the 
flimsy dogma that the Constitution was made for peace and 
41 



322 HABEAS CORPUS. 

not for war — tliat new and "weak invention of the enemy" 
to civil liberty. He relies upon that clause of the Constitution 
giving Congress power to suspend the privilege of habeas cor- 
pus " when, in case of rebellion or invasion, the public safety 
may require it." This, he says, " attests the understanding of 
those who made the Constitution, that ordinary courts of jus- 
tice are inadequate to cases of rebellion — attests their purpose 
that in such cases men may be held in custody whom the 
courts would discharge." This is sound doctrine ; but whence 
does he receive the power to ex post facto, or otherwise to cre- 
ate a new criminal offence and punish it at his discretion, with 
or without the instrumentality of a court-martial of his ap- 
pointing ? The two things are altogether different. The peo- 
ple are accustomed to seeing men arrested and held to bail 
upon mere suspicion of unprovable crime, and it is but a small 
stretch of the same policy to allow their arrest and temporary 
detention without privilege of trial in time of public danger. 
Public necessity may require, sound policy may allow thus 
much, but nothing more. It is a wide stretch beyond this for 
the military to undertake to punish as well as arrest. This 
the Constitution nowhere allows, but expressly forbids. The 
clause referred to, so far from sustaining the detestable dogma, 
tends very strongly to its disproof, according to the sound rule 
of construction that expressio unius est exclusio alterius. The 
Constitution having given Congress discretion to suspend the 
exercise in one particular instance, no other, during war or re- 
bellion, of one of the functions of civil authority, is demon- 
strative proof of two things, either of which utterly annihilates 
his whole argument. First, that such suspension must not be 
carried beyond that particular instance ; second, that the Con- 
stitution was made for time of war or rebellion, as well as for 
time of peace, otherwise there would have been no need for 
the habeas corpus clause, for without it, according to the dogma, 
the Executive would have had unstinted power both to arrest 
and punish. The Constitution gives the Government power 
to declare war, and provides for its being carried on — it con- 
templated rebellion, and authorizes its suppression — yet, ac- 
cording to the dogma, was not made for time of war or rebel- 
lion ! There are other instances in which the Constitution 



HABEAS CORPUS. 323 

trenches on the reserved rights of the citizen during war or 
rebellion, and going to show that its framers had the occur- 
rence of those junctures full in view as likely to fall under its 
sway : First. " No soldier shall, in time of peace, be quartered in 
any house without the consent of the owner ; nor in time of 
war, but in a manner to be prescribed by law." Now, accord- 
ing to Mr. Lincoln's logic, this clause attesting as it does the 
understanding that the citizen was not entitled to the same 
perfect immunity from arbitrary requisitions during war as in 
time of peace, there was to be one mode of law for war 
and another for peace, and therefore the Government may, 
during war, make what arbitrary requisitions it pleases, — that 
is, take a farmer's crops or horses without "just compensation." 
Second. " No person shall be held to answer, etc., except in cases 
arising in the land or naval forces, or in the militia when in 
actual service in time of war or piihlic danger.'' Here, by neces- 
sary implication, the military, are authorized to take cognizance 
of, and punish offences by specified persons in time of war or 
public danger, which, according to the same logic, authorizes 
them to punish all persons, — that is, a clause expressly intro- 
duced for the purpose of preventing the military from punish- 
ing anybody, except those engaged in the military service, is 
construed to give power to punish everybody, whether so en- 
gaged or not. This effectually runs the argument into absurdity, 
and there it will be left. 

Mr. Lincoln says that Mr. Yallandigham " was laboring with 
some effect to prevent the raising of troops ; to encourage de- 
sertions from the army ; and to leave the rebellion without an 
adequate force to suppress it;" and furthermore, that if this 
be not true, then he was improperly arrested and punished. 
"Well, this is not true. So far from it, he in Congress did not 
vote against the men and money the President asked, and said 
not one w^ord in the speech for which he was punished, to pre- 
vent the raising of troops, or to encourage desertion from the 
army. If he had done both or either, then he would have come 
within the act of Congress defining and punishing the offence, 
for which he could and certainly would have been adequately 
punished by the courts ; so that, according to Mr. Lincoln's 
own worst showing, there was not even the miserable pretext 



324 HABEAS CORPUS. 

of public necessity for liis punisliment by the military. If, by 
a circuitous course of ratiocination, lie means to contend tbat 
every speech made in opposition to the justice and policy of 
the war in some slight degree tends to discourage enlistment 
and encourage desertion, then to that extent there is semblance 
of truth in his affirmation, otherwise there is none. But such 
slight prejudice to a vigorous prosecution of the war is but an 
unavoidable incident to the exercise of free speech, and is alto- 
gether of too problematical and trivial a character to induce 
the nation to acquiesce in the suppression of that inestimable 
right, — a privilege which Chatham, Burke, Fox, and others, 
illustrated iji strains of ever-living eloquence, whilst freely and 
repeatedly denouncing the war against this country during our 
Revolution, as impolitic, unjust, cruel, and unchristian, — a priv- 
ilege which the noblest patriots of England have freely exer- 
cised for the last hundred and fifty years, during almost every 
war in which England has been engaged, — a privilege which 
the whole Federal party, in and out of Congress, exercised 
with almost ferocious license during the whole of our last war 
with England, — a privilege which Mr. Lincoln himself, in 
company with very many other "Whigs, freely exercised during 
our war with Mexico. If President Polk had arrested him and 
other Whig leaders, and kept them imprisoned during the war, 
in punishment for their use of the privilege, he and they, to- 
gether with the whole country, would have deemed it a gross, 
tyrannical violation of their rights, as American freemen. 

Mr. Lincoln wishes to make it a damaging point against Mr. 
Yallandigham, because he has always been opposed to a war 
of invasion against the South for its subjugation into submis- 
sion. Whether viewed as fault or error, or both, it is one by 
no means peculiar to him, but equally belongs to at least one 
distinguished abolition friend of Mr. Lincoln, and with which 
he himself and his whole Cabinet were equally imbued so late 
as April, 1861, when Mr. Seward wrote to our ministers in Eu- 
rope that the Administration had definitely decided against the 
policy of such a war, and that there was no one in its favor. 
Now, though it is undoubtedly permissible for Mr. Lincoln and 
his Cabinet to abjure and change so vital a policy, yet surely 
it is equally permissible for Mr. Vallandigham to adhere to an 



HABEAS CORPUS. 325 

opinion wliicli originally so identically coincided with theirs. 
Such coincidence should at least have the effect of exempting 
him from all blameworthiness in their estimation. Yet this is 
one of the specified grounds of his punishment. It is so em- 
phatically, because it presents the only substantial ground of 
distinction between him and those distinguished abolitionists 
who, with impunity, have been allowed to say and speak more 
than ever he did in di8j)aragement of the capacity and trust- 
worthiness of the Administration — more to bring it into odium 
and disrepute. 

Notwithstanding this, Mr. Lincoln solemnly affirms that the 
punishment of Mr. Vallandigham was not at all " because he 
was damaging the political prospects of the Administration;" 
or, in other words, that his punishment was not at all influ- 
enced by party feeling. This affirmation was much needed, 
and will afford matter of gratulation and consolation to all 
those who can give it full credence. It is not meant even to 
insinuate here that it is not entitled to the fullest credence ; 
l)ut it is a fact of great importance that a large part of the 
nation, possibly a decided majority of even our Union-loving 
citizens, give it no credence whatever. Certain it is, that the 
great Democratic party believe, as they say, with unanimity, 
that the main reason for his punishment was because of his 
being a Democrat. However calumnious such an imputation 
may be, yet Mr. Lincoln and every member of his Cabinet 
ought to have had the sagacity to foreknow that such would 
be the result of his persecution ; that such result would be 
very damaging to the Administration, vastly more so than the 
speeches of a hundred such men. Every principle of policy, 
every dictate of common-sense prudence, forbid the persecu- 
tion. Yet for some inadequate, undivulged reason, the perse- 
cution has been indulged in — the consequence being, that, 
notwithstanding the many objections to his peculiar notions 
in politics, and especially his very foolish vagaries as to the 
mode of stoppirg the war and obtaining peace, the Adminis- 
tration will make him Governor of Ohio by the vote of a very 
large majority of its enlightened, patriotic people. As much 
as such a thing is to be deprecated, j^et it is useless for us to 
disguise from ourselves the fact that this Administration has 



326 HABEAS CORPUS. 

equally in its power, by a similar act of folly, to make him our 
next President ; that is, by his incarceration after he is elected, 
to prevent his filling the office of Governor. "Whoever will 
recollect the immense run which the cry of " Wilkes and liberty' 
had throughout all England will see nothing overstrained or 
fanciful in this conjecture. 

This essay has already been protracted to an unanticipated 
and improper length, but having said what has been said in 
disparagement of Mr.Vallandigham's views of national policy, 
it will not do to close it without according him some portion 
of his well-earned meed of praise. In the estimation of a ma- 
jority of the heart-devoted lovers of the Union, of whom the 
writer claims to be one, his loyalty stands pure and unsoiled ; 
he is not merely the equal in point of loyalty of Mr. Lincoln 
or any member of his Cabinet, but in all the higher attributes 
of an enlightened patriot he is decidedly their superior. Ac- 
cording to remembrance, he has never, in his many speeches, 
given utterance to a single disloyal sentiment. But, to his 
eternal honor, he has signalized his patriotism by a chivalric 
defence of the Constitution against Congressional and Presi- 
dential usurpations. For long he stood manfully forth like 
another Bayard, almost single-handed, doing battle against a 
host in defence of civil liberty. There are few true patriots 
who, whilst they may forbear to envy, cannot forbear to admire 
the proud position he has so well earned for himself in history. 

In his reference to the case of General Jackson at New Or- 
leans, Mr. Lincoln says Congress thirty years after approved his 
martial law and proceedings under it. This is a mistake. The 
fine was refunded not in consideration of such approval, but 
in despite disapproval, and in consideration of his great public 
services and his alleged then need of money. His friends in 
preparing the refunding bill, to secure its passage took special 
pains not to say one word in the preamble in his approval, or 
in disapproval of the judge who inflicted the fine. But on the 
contrary, the Judiciary Committees of both the House and 
Senate made reports in strong condemnation of the pretended 
power to declare martial law. Mr. Lincoln ought to have 
remembered to state, that in addition to the cotemporaneous 
decisions to the same effect of the District Court of the United 



HABEAS CORPUS. 327 

States and of tlie Appellate Court of Louisiana, the very court- 
martial that Jackson selected to try Louallier unanimously de- 
cided in the same way, and that they had no jurisdiction to try 
a person not engaged in the military service. 

Mr. Lincoln says, " nor does any one question that the Con- 
stitutional safeguard will, after the rebellion, stand the test" for 
much longer than they have yet done. This is a terrible mis- 
take. The very reverse of the proposition is nearer the truth. 
There are very few men of historical information and intelli- 
gence who do not so question, who do not live in awful appre- 
hension of the hour when our enormous army shall be called 
upon to disband. There is no worse moral treason than the 
advice to let the Constitution sleep during the war, under the 
chimerical belief that it will awake in full vigor after peace. 
Such a sleep is one that "will know no waking." All history 
affords no example of the resurrection to new life of the Con- 
stitution of a republic, after it has once been trampled out by 
military power. 

The fathers warned us that military despotism was the prob- 
able if not necessary result of just such a war as is now going 
on. It seems, from the action of the recent great mass meeting 
in Illinois, that the people have taken the alarm, and are urging 
a speedy peace, from fear of and in avoidance of this and other 
dangers to our liberties. It is much to be feared that the split 
in the North, caused by Mr. Lincoln's improper measures, will 
precipitate us into an improvident and improper peace. 

No. VI. 

FURTHER REMARKS ON PRESIDENT LINCOLN'S RESPONSE TO THE 
ALBANY MEETING. 

The extraordinary response of Mr. Lincoln to the Albany 
meeting deserves much more extended comment than could 
be given in the previous essay, or than can be properly intro- 
duced here. 

He substantially, nay literally, unequivocally claims the 
rightful power to suspend during this rebellion, anywhere and 
everywhere in the loyal States, even those untouched by the 
actual presence or near approach of war, all the constitutional 



328 HABEAS CORPUS. 

" safeguards " of liberty, whenever and wherever lie may choose 
to say it is required by the public safety. Accompanying this 
he claims the rightful power to arrest and punish as he pleases 
any one of the twenty millions of free people inhabiting those 
loyal States, for anything he may choose to say is contrary to 
the public safety. This, too, when properly understood, with- 
out even the nominal agency of his courts-martial. For as the 
rules and articles of war give such courts jurisdiction over none 
but persons engaged in the military service, all the authority 
they have to try or punish other persons must be derived from 
him, and consequently he could as lawfully confer the same 
authority upon a provost marshal, or any other citizen he may 
iind willing to obey his illegal mandate. 

In the face of this bold, frank avowal of such a preposterous 
claim of power, we find men of intelligence, to whom the taint 
of patronage cannot be imputed as their principal motive, ad- 
vising to let the Constitution sleep during all of this probably 
long war. The people cannot be too often, or too earnestly, 
warned against such pernicious advice. The Constitution 
should be kept from such sleep, with the vestal vigilance that 
should guard the sacred flame of national life, which must 
never go out. If suffered to go out, the certain doom of Amer- 
ican liberty is death, without resurrection. Such resurrection is 
wholly unknown to the history of republics. 

With a President, backed by a million of armed men, and 
two billions of patronage, publicly claiming the power to sus- 
pend the nation's right to free speech, free press, and jury trial, 
that he may punish who he pleases, and as he pleases, under 
the pretext of the public safety, we may cease to wonder at 
that daily increasing manifestation of popular alarm, as at a 
near and fearful danger to national liberty. ]N"or is this all the 
cause for such alarm. Many officers of the arm}^, including 
some of high rank, have had the insolent frankness to pub- 
lish their intention of returning N'orth after peace, and with 
the iron heels of their soldiers to " crush the heads" of North- 
ern Democrats. This published threat has recently been 
formally and deliberately reiterated by the man placed at the 
head of all our armies. Such an insult to the whole nation 
should have been promptly redressed by ignominious expul- 



HABEAS CORPUS. 329 

sion from the army of that man, and all others so ofiending. 
But nothing of the sort has been done, nothing of rebuke even 
to that man, who has evinced so little competency for his posi- 
tion that his dismissal would cause little reOTet in or out of 
the army. "Why is nothing done to allay the nation's fear, that 
the infamous purpose of these men has the sympathy, if not 
the sanction, of the President ? But, however that maybe, 
all know he would prove perfectly impotent toward their re- 
straint. Even should he then still be President, his influence 
or power of restraint would not be worth a straw. Still fur- 
ther, the nation sees the rapid enrolment of a standing army 
of negroes that Congress has authorized the President to raise 
to an indetinite number, and for an indefinite time. iSTothing 
can be more perilous to our liberty than such a standing army, 
officered by men mean enough to accept commissions in it. 
Increase it only to the three hundred thousand authorized by 
the bill, which the abolition party passed through the House 
of Representatives at its last session, and the nation will be 
perfectly at the mercy of any part}^ having control of such an 
army. 

It is sufficiently trying to the national patience to witness 
the corruptions in the expenditure of public treasure, the bung- 
ling waste of men and means, without having it strained by 
such threats from our officers as the promised outcome of all 
the nation's sacrifices, — an outcome, after the rebellion is sub- 
dued, which promises, if not a military despotism in perma- 
nency, at least all the horrors of another reign of terror, under 
the sanguinary rule of soldiers, a negro army included. 

Surely Mr. Lincoln must be the only President we have ever 
had who would permit these officers to make, with impunity, 
such infamously treasonable threats against the people whose 
servants they are, whose pay they receive, and with whose mo- 
ney they are clothed and fed, — threats made for no cause but 
the manly expression of opinions, now proven to be in accord- 
ance with those of majorities in five, six, or seven of the largest 
States, constituting a large majority of the loyal part of the 
whole nation. Dead, indeed, must the American heart be to 
every liberty-loving pulsation, when such things shall not 
arouse it with the salutary fear of a great peril, when it shall 
42 



330 HABEAS CO E PUS. 

not indignantly resent such treasonable insolence on tlie part 
of its military servants. Let us not be surprised at the daily 
increasing impatience at the continuance of the war. The great 
need of the hour is to restrain that impatience, lest it precipi- 
tate an improvident peace. The vp-ay to restrain it, is to soothe 
popular feeling by removing the causes for such alarm. 

No man could well have a more flattering manifestation of 
national trust and confidence than had Mr. Lincoln up to that 
evil hour when, submitting to the dictation of a fanatic faction, 
he issued his martial law and abolition proclamations. Those 
ill-advised, disastrous proclamations have failed as to every one 
of their real or imputed objects. They have caused no slave 
insurrection ; they have not terrified the South nor alarmed 
the North into abolitionism or tame acquiescence in the sus- 
pension of all the safeguards of liberty. All that they have 
accomplished has been to give him a divided North, with which 
to contend against a united South. The hopelessness of such 
a contest ought to be apparent to him and every member of his 
Cabinet. It may not be too late, and every dictate of patriot- 
ism requires that he should promptly endeavor to reobtain 
national confidence by undoing what has caused its loss. There 
is no use in trying further the intimidation policy. lie and his 
Cfabinet, with all military ofiicers, ought to be satisfied by this 
time that the nation cannot be bullied into permissive destruc- 
tion of the Constitution and consequent loss of liberty. In 
addition, he ought to be told, by those in whom he has confi- 
dence, what possibly he does not himself know, and what his 
Cabinet will not tell him, but what nevertheless is notoriously 
true : that is, that the odium toward the fanatic faction, with 
which he is allied, is a weight which would break down any 
Administration, even if composed of the ablest and most popu- 
lar statesmen the nation has ever produced. From their full 
participation in the crime of instigating the present rebellion ; 
from their avowed hate of the Union and the Constitution ; from 
their avowed disregard of all those obligations which influence 
the conduct of patriots ; from their ferocious pursuit of their 
demoniac hatred against the Southern people by indiscriminate 
massacre, they have brought themselves to be viewed as devoid 
of a Christian, or what may be termed an American, moral 



HABEAS CORPUS. 331 

sense, and by at least tliree-tbiirtlis of the wliole nation Avith a 
perfect abhorrence. With a word lie can crush them into ap- 
j)ropriate insignifieance. Insignificant they are in point of 
numbers, and would be equallj' so in point of influence, but 
for their supposed control over him. Let him emancipate him- 
self from their thraldom, give also some reliable guarantee that 
for the future he will administer the Government under the 
Constitution, and all may yet be well. Let him fail to do this, 
let him fail to conciliate that host of Union-loving citizens who 
arc daily flocking to the Opposition standard, and his Secretary 
of the Treasury can tell him that there is great danger of his 
being starved into a peace before six months for want of money 
to carry on the war. It is sheer madness, the most reckless 
folly, not to say positive wickedness, in him to carry on the 
war upon a policy or in a manner contrary to the wishes of a 
majority of the people of the Korth, provided he believes such 
to be their wishes. If he does not so believe, then those who 
have access to his ear ought to inform him, in the necessary 
performance of a great duty they owe their countr}-. Mere 
pecuniary self-interest will not command much of the seven or 
eight hundred millions on permanent loan required to meet the 
expenses of the ensuing fiscal 3'ear. The main reliance of the 
Secretary must be on the eflicacy of an appeal to the undivided 
patriotism of an undivided ISTorth. It needs but a small por- 
tion of Mr. Secretary's sagacity to assure the President that 
collision with even the prejudices, much less the guaranteed 
rights of the people, is not the way to procure unanimity and 
secure the success of such an appeal. 

There is another matter of policy in the conduct of the war, 
not sufficiently dwelt on in public discussions, and to which too 
much attention cannot be paid. It is the policy enunciated 
and so lucidly vindicated in that ablest of our State papers, 
the message of Governor Seymour, — a State paper which, for 
ability and importance, ranks among the very ablest that the 
nation has ever produced, and places him at the head of our 
living statesmen. The policy alluded to is, that in prosecuting 
the war for restoration of the Union, coercion and conciliation 
should go hand in hand. This is commended for adoption not 
merely because it is just, but also as the only policy by which 



332 HABEAS COEPUS. 

restoration can possibly be eifected, or at least tlie only policy 
wbicb, after the war is over, will leave tlie two sections in such 
a state of feeling toward each other as to render restoration 
very desirable. Yet this ruling party has done nothing tend- 
ing that way. Their every measure has been the . very 
opposite of conciliation. Nothing will be said here about the 
abolitionizing of the war. That is, perhaps, past remedy dur- 
ing Mr. Lincoln's term ; for it is a subject about which he will 
not now even patiently listen to remonstrance. But there is 
another, in which every American who cherishes the honor of 
our country has a deep interest, and in which Mr. Lincoln, 
personally, has a much larger interest than any other citizen. 
The allusion is to the wanton destruction, by our armies, of 
private property in the South. If private information and the 
boastful letters of newspaper correspondents can be relied on, 
our armies are making a broad track of desolation wherever 
they move. This, too, for the avowed purpose of starving 
women and children, and other non-combatant inhabitants. 

That this is contrary to the well-established usage of civil- 
ized warfare is well known to Mr. Lincoln and every member 
of his Cabinet. Even the literary General, who seems to en- 
joy so large a share of the President's confidence, is said to 
have proved this, in his book on the law of war, beyond cavil 
by an uncontradicted array of authorities. Mr. Lincoln cannot 
reasonably be supposed to seek any rivalship in that infamy 
with which history has loaded Louis the Fourteenth for his 
devastation of the Palatinate. But let him take care lest he 
be placed still higher on that bad eminence. Louis was warring 
against a foreign enemy, whilst he is warring against his 
countrymen. Louis devastated a foreign State, whereas the 
armies under Mr. Lincoln's control are devastating his own 
country. Suppose that, in retaliation, the Southern armies 
should pursue a similar course in all their invasions of the 
North. The next step, and an early one too, will be the hoist- 
ing the black flag on both sides. This will afford that occasion 
for intervention for which England and France are impatiently 
awaiting. The moral sense of all Europe will sustain them in 
putting forth their whole strength to stop such a war. The 
"higher law" of the great brotherhood of Christian nations 



HABEAS CORPUS. 333 

will not permit sucli a war to be waged. With sucli an inter- 
vention against ns, every man of sense will see the utter im- 
practicability of our sul)duing the South into submission. 
Blockade its ports, destroy all its commerce, let its soil become 
the theatre of war, and even doughty New England wouM 
soon cry loudly, yea, most piteously, for peace on any terms. 
If the claims of justice, of humanity, of the law of nations, 
have not sufficient restraining influence against such a policy, 
yet the obvious great danger of its pursuit proves it to be a 
short-sighted bad policy that ought at once to be abandoned. 
The licentiousness of our soldierj^, if the fault be there, should 
be restrained by the most stringent orders to our Generals. 

N'o one knows better than Mr. Lincoln that, outside the feel- 
ings of mere patriotism, there is no reason so strong with the 
people of the I^orthwest, for desiring a restoration of the 
Union, as the reopening of that bountiful Southern market, 
with which they have so prosperously dealt. A desolated 
South cannot furnish that market. This they well know, and, 
as he ought also to know, they will not sanction a policy of 
desolation or extermination as a means for suppressing the 
rebellion. If the Union cannot be saved but by the use of 
such means, they will adopt the Yankee motto and say, " let 
it slide." The entire destruction of the thing contended for, 
can never be true policy in a war for its acquisition. 

So, also, Mr. Lincoln and his Generals may rely, that the 
loyal part of the nation will never consent, in avoidance of 
territorial disintegration, to governmental consolidation, or 
any form of imperial power. They will not consent to let the 
Constitution sleep during a long war, merely to try whether 
the party in power will be honest enough to let it wake again. 

It is not intended to impute to iSIr. Lincoln personally, the 
intention of enslaving his white countrymen for the sake of 
emancipating the blacks. A majority of the nation would 
probably relieve him personally from such an imputation, 
however justly his party may be supposed to have earned it. 
It may be mere ignorant recklessness, in the pursuit of his 
mad scheme of immediate emancipation, which induces him 
to place the permanent liberties and well-being of his country 
in such imminent peril. With his party it is different. Their 



334 HABEAS CORPUS 

undisguised policy is, coute que coute, tlie anniliilation of slavery, 
or tlie annihilation of the South. Recreant as they have proved 
to their most solemn pledges, in and out of Congress, and re- 
gardless as they avow themselves to all duty of affection or 
olbedience to the Constitution, the nation may well suspect 
them of an intention never to permit power to pass peaceably 
from their hands. 

Mr. Lincoln's own patriotism may soon be brought to the 
test. The theory of our Government, much more even than 
that of England, requires that in time of war, especially of civil 
war, the Administration should act in accord with the national 
sentiment. Its success can be attained in no other way. To 
attempt it even would be either mere insanity or the worst 
wickedness. Should the recently elected House of Represen- 
tatives, the immediate representatives of the national will, pass 
a vote condemning his policy, and Mr. Lincoln does not there- 
upon either resign or change that policy, all men will know 
full well what to think of his patriotism. The English Consti- 
tution, no more than our own, makes it illegal for an Admin- 
istration to hold on to power after a vote of want of con- 
fidence by the representatives of the people. But an immemo- 
rial usage, based upon obvious policy of necessity, makes 
resignation an imperative necessity in England, as much so as 
if it were an express part of the Constitution. So also must 
ultimately be the rule here. Any President or Cabinet attempt- 
ing to frustrate the adoption of such a rule here would be as 
inevitably crushed by popular odium in this country as would 
be a Ministry in England for refusing obedience to the rule. 



CONFISCATION AND ATTAINDER. 33{ 



CHAPTER XVII. 

Februart, 1862. 
CONFISCATION AND ATTAINDER. 
1^0. I. 

"^?? legislative powers herein granted shall he vested in Congress. 
The Executive power shall be vested in a President. The Judicial 
2J0wer shall be vested in one Supreme Court" etc. — Con. U. S. 

" The powers of the Government are divided into three dis- 
tinct departments, and confided to separate bodies of magis- 
tracy. It is of the hist importance to the purity of our insti- 
tutions that this division of powers shouki be preserved, and 
this barrier against the encroachment of one department upon 
another shouki be properly kept up." Gaines vs. Buford, (1 
Dana, 505), decided in 1833. So also has it been held by the 
Supreme Court and all the State Appellate Courts. 

" To enjoin what shall be done or what left undone, and to 
secure obedience to the injunction by prescribing appropriate 
penalties, belongs exclusively to legislation. To ascertain a 
violation of such injunction, and inflict the penalty, belongs 
to the judicial function." 

" So far as the act in question undertakes to divest Gaines 
of his title and vest it in the State, it is a legislative infliction 
of the penalty; it is an assumption to that extent of judicial 
magistracy without affording the accused the benefit of those 
forms and guards of trial which are his constitutional right 
whenever a citizen is sought to be punished, either in his per- 
son or by forfeiture of his property, for alleged violations of 
the penal enactions of the State. The right to forfeit is merely 
an incident of the power to punish guilt. Without the guilt 
the forfeiture cannot be incurred. The guilt cannf»t be ascer- 



336 CONFISCATION AND ATTAINDER. 

tallied by the Legislature, nor otherwise than hy a direct crimi- 
nal procedure of some sort, and a judicial determination there- 
on. — (1 Dana, 506, 510). 

"iVo bill of attainder shall he -passed.'' "iVb State shall pass 
any hill of attainder.'" — Con. U. S. 

" Bills of attainder are said by "Woodson, in his lectures, to 
be acts of the supreme power pronouncing capital sentences 
where the Legislature assumes judicial magistracy, and hills 
of pains and penalties those which inflict milder punishments. 
But it is believed that hill of attainder is a generic term, com- 
prehending both description of acts. Such, at least, is believed 
to be its true signification, as used in our Constitutions. Thus 
it is said by the Supreme Court in Fletcher vs. Peck (6 Cranch, 
138) : 'A bill of attainder may affect the life of an individual, 
or may confiscate his property, or both.' So, also, it is said by 
Judge Tucker, in his edition of Blackstone, vol. 1, page 292 : 
' Bills of attainder are legislative acts passed for the especial 
purpose of attainting particular individuals of treason or felony, 
or inflicting pains and penalties beyond or contrary to common 
law.' That the term should be received in the large sense thus 
given to it, is consonant with the true republican character of 
our institutions. A condemnatory act of the Legislature in- 
flicting upon an individual, or class of individuals, pains and 
penalties is as much within the reason of the prohibition as if 
it inflicted capital punishment. They are both equally hostile 
to the principles of civil liberty and the spirit of our written 
Constitutions. They are equally engines of tyranny and op- 
pression — equally unsuited to the Government of a free peo- 
ple."— 1 Dana, 509. 

Bills of attainder have generally designated their victims by 
name, but they may do it also by classes, or by general des- 
cription fitting a multitude of persons. Either mode is equally 
liable to moral and constitutional censure, l^ov will these 
suggestions be answered by the obvious difiiculty, if not im- 
practicability, of enforcing forfeiture by direct criminal pro- 
ceedings against such a host of unknown delinquents. If the 
power attempted to be assumed is a wholesome one, and was 
wisely, equitably executed in this instance, it will be a matter 
of regret that other and higher considerations induced the 



C X F I S C A T I X AND ATTAINDER. 337 

framers of the Coustitution to withhold from the Leirishiture 
the power of giving such wholesale, summary redress. If, on 
the contrary, the existence of such power would be noxious to 
the common weal, and in this instance its exercise was oppres- 
sive, unwise, and unjust, then it will be matter of gratulation 
that the wisdom of the Constitution has secured the commu- 
nity against such extensive oppression, and that the very ex- 
tent of the evil intended is a security against its perpetration. 
But with this we have nothing to do. The validity of the act 
must be tested without regard to those qualities." — 1 Dana, 
510—512. 

Judge Story (3 Com. 211), speaking of bills of attainder, 
says : " The injustice and iniquity of such acts, in general, 
constitute an irresistible argument against the existence of the 
power. In a free Government it would be intolerable ; and in 
the hands of a reigning faction, it might be, and probably 
would be, abused to the ruin and death of the most virtuous 
citizens. Bills of this sort have been most usually passed in 
England in times of rebellion, or of gross subserviency to the 
crown, or of violent political excitements ; periods at which 
all nations are liable (as well the free as the enslaved) to forget 
their duties, and to trample on the rights and liberties of 
others. During the American Revolution this power was used 
with a most unsparing hand ; and it has been a matter of re- 
gret in succeeding times, however much it may have been iii>- 
■plauded fiagrante belloJ" 

This view of justice and policy has received our national 
corroboration, and the repugnance of enlightened modern 
legislation to confiscation in punishing crime has been amply 
illustrated. Congress has never yet so used its power to punish 
treason, and it is believed that every one of our States has 
abolished that forfeiture of estate which was the common law 
incident to attainders for every other sort of felony. Vengeance, 
not policy, must be the ruling motive in any attempt to con- 
fiscate the estates of five millions of rebels. 

"Xo person shall be held to answer for a capital or other- 
wise infamous crime unless on a presentment or indictment 
of a grand jury, except in cases arising in the land or naval 
forces, or in the militia when in actual service, in time of war 
43 



338 CONFISCATION AND ATTAINDER. 

or public danger ; nor shall any person he deprived of life, liberty, 
or property, without due process of law ; nor shall private property 
be taken for public use without just compensation." — Con. 
U. S. 

Without due process of law, or the equivalent phrase, hy the 
law of the land, means, according to Lord Coke (2 Inst., 50), 
" so that no man be taken, imprisoned, or put out of his free- 
hold without indictment or presentment of good and lawful 
men," etc., etc. "Against this ancient and fundamental law 
of Magna Charta," says he, "I find an act of Parliament made, 
that justices without any presentment or finding of twelve 
men, upon a bare information, should have power to hear and 
determine all offences committed against any statute. By color 
of which act," shaking this fundamental law, it is not credible 
what horrible oppressions and exactions, to the undoing of in- 
finite numbers of people, were committed throughout England 
by Justices Empson and Dudley." Such, also, is the signifi- 
cation given to those phrases by the most eminent American 
jurists. See 2 Kent's Com., 10 ; 3 Story's Com., 661 ; and 
1 Tuck. Bl'k. 304. The inference is, that no man can be 
divested of the right or title to his property by mere legislative 
action, without the co-operation of a regular judicial investi- 
gation and condemnation. It being the unanimous concession 
heretofore of all parties, abolitionists alone excepted, that Con- 
gress has no power of emancipation within a State, it would 
be doubtful whether Congress could, in any mode, affix eman- 
cipation as a penalty for the treason of a slave owner ; but even 
if Congress had such power, when pursued in a legitimate 
manner, it would still also follow that its sole action, proprio 
vigore, without judicial co-operation, could never emancipate 
the slaves of rebels or traitors. 

Another reason why Congress cannot emancipate slaves : It 
has always been conceded that Congress cannot interfere with 
the municipal regulations of a State, at least with such of its 
laws as define what shall be property, or direct how it shall be 
conveyed or managed. All the slaveholding States have very 
special regulations as to emancipation, built upon the policy 
of preventing an undue increase of free and pauper negroes. 
This policy the Federal Government can in no way interfere 



CONFISCATION AND ATTAINDER. 339 

witli. If it becomes the owner of slaves, as it legitimately may 
in various ways, it must hold as all other owners of property 
do, subject to the law of the State, which precludes the eman- 
cipation of slaves otherwise than in the mode pointed out for 
other owners of such property. This is practically illustrated 
by the requisition uniformly made of a renunciation by the 
State of its right to tax any real estate the Federal Govern- 
ment is about to buy for national use. Whether the policy be 
right or wrong, which restrains a slave-owner's right of eman- 
cipation, because the unfettered right might cause a public 
nuisance or injury to similar property of other owners. Con- 
gress in the management of its slave property can have neither 
power or right to violate that policy. 

" Congress shall have power to declare the punishment of 
treason, but no attainder of treason shall work corruption of 
blood or forfeiture, except during the life of the person at- 
tainted." — Con. U. S. 

Congress having been forbid to pass any bill of attainder, 
this clause must have exclusive reference to judicial attainder. 
In that sense it precludes Congress from all power to prescribe 
a forfeiture, in any mode, beyond the life estate of the offen- 
der, in any description of property, as a penalty for treason. 
Consequently, Congress can, under no view of its power, eman- 
cipate a slave by way of forfeiture for longer than the lifetime 
of its owner, and so to exercise the power would be obviously 
unjust, because of the injury that would thereby be inflicted 
on the ultimate owner. 

Judge Story, in commenting on this clause (3 Com., 172), 
gives thus the reason for this limitation of the power of for- 
feiture : " It is surely enough for society to take the life of the 
offender, as a just punishment for his crime, without taking 
from offspring and relatives that property which may be the 
only means of saving them from poverty and ruin. The his- 
tory of other countries abundantly proves that one of the strong 
incentives to prosecute such offences as treason has been the 
chance of sharing in the plunder of the victims. Rapacity has 
thus been stimulated to exert itself in the service of the most 
corrupt tyranny ; and tyranny has thus been furnished with 
new opportunities of indulging its malignity and revenge, of 



340 CONFISCATION AND ATTAINDER. 

gratifying its envy, and of increasing its means to reward 
favorites, and secure retainers for the worst deeds." 

The restriction of the power of Congress, as to extent of 
forfeiture, is confined to attainder for treason, as such is the 
fair construction of the clause, unless by liberal intendment 
the kindred offence of sedition be also included. But that in- 
tention is also to be inferred from the fact that Congress is not 
80 restricted as to the other crimes it is expressly authorized 
to punish. The fear of the power being abused by a dominant 
party for the purpose of persecution did not apply to any crime 
but that of treason and its cognates. 

No.n. 

THE POLICY OF CONFISCATION AND EMANCIPATION. 

As all loyal Union men look forward to the day when the 
present execrable rebellion will be suppressed, and the law 
restored to its supremacy, it is obviously worse than idle to 
resort to any mode of confiscation or forfeiture which the law, 
when so restored, will not recognize as legal and valid. 

The proclaimed emancipation of three millions of slaves is 
equivalent to the proclamation of exterminating war against 
all the men, women, and children of the South, without regard 
to a million of the white population against whom no political 
fault can properly be alleged, except from circumstances which 
they could not control, and of which they have been made the 
victims. It will also bring probable destruction upon most of 
the negroes, who are free from all fault toward the Government. 

The adoption of such a policy would, in the estimation of 
all Christendom, rule the l^Torth out of the pale of civilized 
States, and place the war out of the rules and usages of war- 
fare among civilized nations. So says our Declaration of In- 
dependence, than which there can be no higher authority 
among Americans. There never was a people so craven as 
not to meet such a measure with the severest retaliation. The 
war would be carried on by both sides under what is termed 
the black flag. That pretext, if not justification, which Eng- 
land and France are apparently so eagerly seeking for, would 



CONFISCATION AND ATTAINDER. 841 

be afiorded them on tlie score of humaiiit}', as was done in the 
war between Turkey and Greece. 

The power to inflict such terrible calamity on the nation — 
such an indelible stigma on its character, is claimed as part of 
the law of war. The power to wage the war is derived exclu- 
sively from the acts of Congress, the power to pass which is 
derived exclusively from the Constitution. "What Congress 
cannot do directly, it cannot accomplish indirectly, through 
the agency of the army. Congress having no abolition power, 
it can institute no measure, however indirect, which has aboli- 
tion for its object — such as enticing slaves to our camps, or 
otherwise exciting servile war. If that object cannot be at- 
tained directly for the great purpose of philanthropy, national 
peace, and prosperity, most surely abolition cannot be used 
indirectly as a means for attaining any other purpose — such as 
aid in carrying on the war. 

It cannot be pretended that the Constitution expressly sanc- 
tions or contemplates the employment of such means in sup- 
pressing rebellion. Its framers had recently been rebels — 
had achieved their freedom by rebellion, and could not have 
held rebellion in such abhorrence as to contemplate such in- 
human, sanguinary means for its suppression. Such presump- 
tion would be foul calumny on their virtue, their humanity, 
and their intelligence. They explicitly said what entirely 
negatives any such idea, and what impliedly forbids the em- 
ployment of such means. They made it the express duty of 
the Federal Government to suppress slave insurrection. iN^othing 
could be more absurd than to suppose permission to incite such 
insurrections, when as soon as they occur the Government is 
bound to suppress them. 

The Constitution gives power to Congress " to make rules 
for the government of the land and naval forces," that is, to 
govern the war. Every officer, from the President down, would 
readily admit that he is hound to obey the rules and articles 
of war established by Congress. ^Now, suppose that all the 
clauses of the Constitution, protecting the personal liberties 
and private property of citizens, were embodied in the rules 
and articles of war by Congress, no man, not even a soldier, 
would doubt that they must be obeyed. Yet, without any 



342 CONFISCATION AND ATTAINDER. 

such Congressional adoption, those clauses are, to every intent, 
parts of the rules and articles of war, so far as they apply, and 
on every score are entitled to better obedience, stricter observ- 
ance, than those enacted by Congress. l\naat doubt, then, that 
the Constitution is the law of the war ? This utterly extinguishes 
all idea of the Constitution being made for time of peace, and 
not for war. 

The power of emancipation is also claimed under the law 
of necessity ; but neither does that law allow it, even accord- 
ing to the construction given to it by the higher-law men them- 
selves. They admit there must be an actual, not a mere ficti- 
tious necessity for the intervention of their law, and the shoving 
aside of the Constitution. Such necessity does not exist, nor 
even its semblance. That the present causeless, infamous re- 
bellion is hard to put down cannot be denied. But that the 
existence of the people of the loyal States, or that of their 
Government, is in any sort of peril from the rebels, is what no 
truthful man will considerately affirm. "We are in round num- 
bers twenty millions against five. When we consider our 
greater condensation of population, our greater facility of rail- 
road and water transportation, our exclusive naval power, our 
greater pecuniary and other resources for the equipment and 
maintenance of armies, this disparity of mere numbers should 
be doubled in estimating the comparative military strength of 
the two sections, and upon a very low estimate the ratio fixed 
at eight men to one. It is merely absurd to surmise that the 
eight can be conquered by the one, though the one in a defen- 
sive war may long keep the eight at bay. "What will merely 
expedite or facilitate putting down the rebellion falls far short 
of the requirement of the higher-law problem of necessity. 

But we are told the expense of the war is so enormous — a 
million and a half a day — as to render its speedy termination 
an actual necessity. That enormous expenditure is not at all 
necessary, not more than the third of it for the safety of our 
people or their G-overnment — it is the result of a foolish effort 
to do what is impracticable, with any amount of expenditui'e, 
any aid derivable from emancipation proclamations ; that is, 
the sudden suppression of the rebellion and the submission of 
the traitor States. Time will be required for that. It is una- 



CONFISCATION AND ATTAINDER. 343 

voidably a slow, protracted, process that ever brings all tliat 
about. A milliou of men, with a daily expenditure of two 
millions of money, cannot accomplish it without the aid of 
time. AVith that aid it no doubt can be and will be ultimately 
accomplished, unless there should happen some one of several 
causes for its prevention. 

Prominent among these would be a course of policy inducing 
a servile war, with its accompaniment, a war of mutual exter- 
mination, justifying and ensuring European intervention. Or 
without a servile war, a law of general confiscation of all South- 
ern property, accompanied by a military success which will 
drive the South to desperation, and cause the buying of French 
protection, by the cession of Louisiana and Western Florida, 
and even, if absolutely necessary, of Texas also. Or, by the 
bankruptcy of the Government. 

This last may happen during the present year. Waiving 
all discussion for the present of the two former, let us consider 
a little the chance of the latter calamity. 

It would be rash criticism which should venture to censure 
the course of the very intelligent Secretary of the Treasury 
without knowing what he knows, and without seeing affairs 
in the light with which it is presumable that he sees them. 
But if such criticism were allowable, to the uninitiated it might 
be respectfully suggested, that he made a great mistake in not 
using every effort from the first to obtain a European market 
for our bonds. There is not now in this country, nor will 
there be for half a century, dormant, unemployed capital 
enough to absorb the enormous amount of bonds he will have 
to sell during the present year, to say nothing of next year. 
There is not now, and probably will not be this year, enough 
such capital seeking permanent investment in those bonds to 
the amount of even a third of what he will need. Whatever 
he may do toward forcing or coaxing the bonds into the hands 
of those who cannot permanently hold them, will only serve 
to force them upon the market and precipitate their fall, pos- 
sibl}^ as low as sixty cents to the dollar before the year is out. 
Any indication of such rapid depreciation will eff'ectually close 
the European market. What induces tlie belief of the dearth 
of dormant capital here, in addition to our comparative high 



344 CONFISCATIOX AND ATTAINDER. 

rate of interest, is tlie fact that nearly all our canals and rail- 
roads have been built with foreign capital. For some years 
prior to 1860, it was estimated that not less than sixty millions 
annually of foreign capital were invested in our State bonds. 
If he has to depend upon assignats, any mode of currency largely 
in excess of the wants or convenient use of the nation, their 
certain fate is well known to all. They can serve only as a 
very short, temporary expedient. The Secretary is not old 
enough to have witnessed it, but the experience of the last 
war with England gave no cause for confidence in oiir people 
for standing heavy war taxation. The writer well recollects that 
it was the opinion of intelligent men at that time, that if the war 
had lasted a year longer the Federalists would have got into 
power. The Secretary ought not to rely too much upon that 
source of revenue, whatever the enthusiastic coercives may tell 
him as to the present temper of the people on that subject. 
There seems no alternative against extreme pecuniary embar- 
rassment, but the reduction of the expenditures within the 
means of the Government. 

The way to do this is to fall back upon something like the 
original plan of General Scott for conducting the war, which 
was, after taking N^ew Orleans, to make it altogether a defen- 
sive war — leaving it to time, the pressure of taxation, and the 
loss of trade, to restore the people of the South to their senses. 
This can be done with an army of about two hundred thousand 
men, which will be a reduction of two-thirds of the expense. 
Subsequent events would now require the retention of Beau- 
fort, the taking of Pensacola, and the driving of the rebels 
from most of Tennessee. 

In the opinion of some of our most intelligent men, this has 
always been, and still is, the only certain mode of obtaining a 
restoration of the Union. It is not only accompanied with no 
hazard of the ultimate success, but, as they have thought, it 
would also be the most expeditious. To obtain the national 
acquiescence in that plan, it is only necessary that its readop- 
tion shall be preceded by one or two victories on a large scale 
to wipe out the remembrance of the Bull Eun disaster. It is 
e\'identfrom Mr. Seward's letter to Mr. Adams of 10th of April 
last, that some such plan must have been the one unanimously 



CONFISCATION AND ATTAINDER. 345 

agreed upon by the Cabinet up to that time. Indeed, some- 
thing short of that would then have been approved by public 
sentiment. On the 11th of April last the writer, in a publica- 
tion then made, recommended a similar plan, but found little 
or no co-operation from any quarter. Some of those who are 
now among the intolerant, proscriptive coercives even rebuked 
him for intemperate zeal. It was then still doubtful whether 
the Administration meant to coerce payment of duties. The 
departure from the original plan, and adopting one of invading 
coercion, is deemed one of the most stupendous blunders ever 
committed. Its only parallel is to be found in the very similar 
one committed by the Lord North ministry, which lost the 
American colonies to the British crown. Had they contented 
themselves with holding New York, and a vigorous blockade, 
and for the rest trusting to time and conciliation, instead of 
coercion, the result might have been reversed, leaving it to the 
force of mere increase of population in twenty or thirty years 
to have brought about an amicable separation. 

The great benefit from the re-adoption of the plan, besides 
removing all danger of permanent separation, and preventing 
an increase of sectional animosity, is that it will at once remove 
all pretext of necessity for inhuman measures, or for violating 
the Constitution, and postpone indefinitely the great impend- 
ing danger of its permanent destruction. The imminence of 
that danger can be appreciated from the ratification of all acts 
of the Administration, the character of the measures pending 
before Congress, and especially from the declaration of prin- 
ciples and opinions made by leading members of both houses. 
A specimen of them is to be found in a recent speech made in 
the House by the Chairman of its Finance Committee. He said : 

" The question recurs how can the war be carried on so as 
to save the Union? 'Universal emancipation must be pro- 
claimed.' If any unforeseen emergency should arise, endan- 
gering the existence of the Republic, the section of the Con- 
stitution which says ' that the President shall take care that 
the laws be faithfully executed, creates him as much dictator, 
for the time being, as a decree of the Roman Senate made a 
consul dictator. * * * But when Congress assembled they 
would have the same full powers. If no other means were left 
44 



346 CONFISCATION AND ATTAINDER. 

to save the Republic from destruction, I believe we have power 
under the Constitution, and according to its express provision, to 
declare a dictator, without confining the choice to any officer of the 
Crovermnent." 

This man, after the utterance of these sentiments, was neither 
called to order, hissed, nor kicked out of the House. Yet 
simultaneously with their utterance the Senate was trying one 
of its members for disloyalty, and his expulsion actually took 
place, because, among other things, he never voted for an ap- 
propriation for cariying on the war — that, according to the 
avowed opinions of Senators, being full proof of such disloyalty 
as to authorize his expulsion. If these are not rapid strides 
toward absolute despotism it is difficult to understand what 
would serve for proof of such tendency. No baser moral trea- 
son ever befouled human lips than the words uttered by this 
man, yet he received not the mildest rebuke, whilst his party 
in the Senate was treating it as a ground of expulsion, that a 
Senator did not vote in accordance with the views of the ma- 
jority. All this, too, claimed to be said and done " under the 
Constitution, and according to its express provisions." Con- 
gress, with full power to expel members who do not vote to 
suit them, and to establish a dictator over us whenever it may 
choose to think it required by public safety ! This ranter after 
universal emancipation, this fanatic so eager for the freedom 
of negroes, is ready and willing, claims the power in Congress, 
to make slaves of his white countrymen ! He ought never to 
have been born an American. He is fit only to have been born 
a Russian serf, and kept a serf for life. He is the recorder of 
his own infamy. He has made himself the enduring mark for 
the unmoving finger of national scorn. With six hundred 
thousand armed men in the field, and these advocates of dic- 
tatorship in Congress, much the greatest of our national perils 
will begin when the rebellion has been suppressed. The reduc- 
tion of the army beforehand is the only way to avoid the peril. 

A bill was presented to the House of Representatives, which 
is probably now pending before that body, for the purpose of 
confiscating all the property in the eleven seceding States at a 
single blow. It names a day, by which if the taxes apportioned 
by Congress on those States are not paid, the confiscation shall 



CONFISCATION AND ATTAINDER. 347 

take effect, and the title become vested in the United States. 
This is an attempt, by a small cunning, to pettifog a confisca- 
tion and emancipation bill round the obstructions of the Con- 
stitution. The deviser of the scheme had seen sheriffs selling 
property for non-payment of taxes, without any judicial order 
for so doing, and not understanding why it can be so done 
without violating the Constitution, fancies he can slip his bill 
through the Constitution by the aid of that brilliant analogy. 
The ignorance of the Constitution betrayed in these times by 
men in high political station is really marvelous. The pro- 
jector of this device wants to resuscitate the old Articles of 
Confederation, make a requisition on the States, and, for failure 
to comply, inflict this sort of summary punishment — a punish- 
ment for which there is not the slightest warrant, cither in 
those Articles or the present Constitution. K he could be sent 
back for a day or two to a law school, he would there learn, 
that to get rid of the old mode of requisition upon the States, 
and to impose the tax directly upon the separate individual 
citizens, was a leading motive for adopting the Constitution, 
and that it does not permit any requisition by Congress upon 
the States. He has also some recollection from his reading of 
outlaws and outlawry, and suspecting, from the way the Con- 
stitution reads, he might not be able to get at a rebel or his 
property by way of punishment for treason without the instru- 
mentality of the courts, by a single flourish of his legislative 
pen he outlaws some five millions of our citizens, and then he 
thinks they \%'ill not be entitled to the protection of the Con- 
stitution or any other law. He first puts them " out of the 
law," and then fires at them his tremendous confiscation blun- 
derbuss. He is no petty larceny fileher from single men one 
at a time, but, with a most lofty ambition, at one fell swoop 
strips the people of eleven States of all their property, and 
vests it in the Government. "What a pity that such commend- 
able ambition should be thwarted by that vexatious prohibition 
ag^ainst bills of attainder ! 

The talented leader of the abolitionists out of Congress in- 
sists that the Constitution is already all gone, broken up, and 
destroyed, and that for the present we can work along well 
enough without one, but as soon as we have leisure the nation 



348 CONFISCATION AND ATTAINDER. 

must make a Constitution ! His friends in Congress seem to 
be acting upon his idea. One of them, a leading Senator, ex- 
claimed in a speech lately : " By heaven, if I was your Presi- 
dent, and you did not give me the necessary authority, I would 
usurp it, and you might help yourselves ! " What a beautiful 
Constitution it will be that these men will give us ! 

The confiscation bill reported by the Senate committee is 
another petifogging dodge to get round the Constitution, and 
punish treason with forfeitures, without the aid of courts and 
juries. It attempts to assimilate forfeiture for treason to for- 
feiture for smuggling, and directs the forfeiture to be enforced 
by a sort of proceeding in rem, without any sort of jury trial. 
The attempted trickery on the Constitution cannot avail ; the 
courts will not lend their aid. That mode of punishing smug- 
gling is a sort of anomaly in our jurisprudence, which, so 
far from justifying other steps in the same direction, is liable 
to great doubt as to its own constitutionality. If it had been 
seriously resisted in the first instance, it is doubtful whether it 
would have received judicial sanction. Following English pre- 
cedent, without particular attention to the application of such 
precedent under our Constitution, it was treated as a quasi 
oficnce in the thing smuggled — like the old law of deodand, 
and not as an offence of the owner, or as an offence separable 
from his. With much plausibility it might have been supposed 
that such mode of procedure was a depriving the owner of his 
property by " due process of law," within the meaning of the 
Constitution, that being the established mode in England, not- 
withstanding the clause in Magna Charta, the same as that in 
our Constitution, against depriving a citizen of his property 
without due process of law. Let this conjecture be right or 
wrong, whatever the principle upon which such procedure is 
based, it manifestly admits no extension without impairing the 
sedulously guarded right of trial by jury. As to property Ij'ing 
in rebel States, the bill authorizes its confiscation and sale by 
any person the President may appoint, that person, of coiirse, 
to be the judge of the guilt of the owner, thus constituting 
him both judge and jury. 

The author of the bill said in his speech, that the intention 
was, though the bill does not say so, to confiscate the real estate 



CONFISCATION AND ATTAINDER. 349 

during tlie life of the owner, but tlie personal estate, including 
slaves, absolutely. He does not say where he finds authority 
for the distinction, nor does he give any reason for it. The 
Constitution, in giving power to Congress to punish treason, 
says : ^'■But no attainder of treason shall work forfeiture, except 
during the life of the person attainted." "When it is recollected 
that, at common law, attainder worked forfeiture of all the 
offender's estate, both real and personal, the words of the Con- 
stitution furnish no room whatever for making any such dis- 
tinction. The perishable quality of personality affords no suf- 
ficient reason for arbitrarily making such distinction ; for the 
property can be sold and vested in permanent stock by order 
of court, the Government being allowed to receive the in- 
terest, whilst the principal is reserved for the ultimate owners 
after the death of the offender. As to slaves, there is no need 
for their sale, they not being deemed perishable property, and 
the law allowing a remainder after a life estate in them. 

The attempt of the bill to divest the title out of the traitor, 
and by force of its own action, ^'' ipso facto,'" vest it in the Gov- 
ernment, falls directly within the prohibition against bills of 
attainder. It is a plain effort to usurp judicial magistracy, and 
inflict punishment directly by mere legislation. 

As to the danger of a war with France, from driving the 
South to desperation, that is a topic which probably had better 
be hinted at only rather than publicly discussed. But it must 
not be overlooked. K we once get into such a war, no one 
can tell when it will cease. Kentucky, Missouri, and the other 
States occupying the upper waters of the great river, will never 
consent to let Louisiana go as the price of peace. They would 
force the nation into another war in less than a year after any 
peace made on that basis with any foreign or confederate power 
or powers whatever. That is a national possession which their 
ten millions of hardy freemen will neter surrender, whatever 
may be the suffering of their Eastern countrymen from a for- 
eign war. This ought to convince the advocates of wholesale 
confiscation and emancipation that the ordering of beneficent 
Providence does not permit such enormous inhumanity either 
to a debased, despicable pigmy-minded fanaticism, or to the 
even worse diabolism of a raving vengeance. 



350 CONFISCATION AND ATTAINDER. 

The following extracts from the speech of a talented and 
leading Republican Senator, which have been commended as 
"noble words," corroborate entirely the main view of this and 
preceding pamphlets, and though it must be confessed that the 
action of the Honorable Senator has not always conformed to 
his precept, he shall be allowed to conclude the discussion : 

" I do not place the power on the ground assumed in some 
quarters, that in times of war or rebellion the military is supe- 
rior to the civil power ; or that, in such times, what persons 
may choose to call necessity is higher and above the Constitu- 
tion. Necessity is the plea of tyrants, and if our Constitution 
ceases to operate the moment a person charged with its obser- 
vance thinks there is necessity for its violation, it is of little 
value. I hold that the military is as much subject to control 
by civil power in war as in peace. 

" I want no other authority for putting down this gigantic 
rebellion than such as may be properly derived from the Con- 
stitution. It is equal even to this great emergency. The more 
we study its provisions, the more it is tried in troublous times, 
the greater will be our admiration and veneration for the wis- 
dom of its authors. 

"I am for suppressing this enormous rebellion according to 
law, and in no other way. We are fighting to maintain the 
Constitution, and it especially becomes us not to violate it our- 
selves. How are we better than the rebels, if both alike set at naught 
the Constitution ? I warn my countrymen who stand ready to 
tolerate almost any act done in good faith for the suppression 
of the rebellion, not to sanction usurpations of power which 
may hereafter become precedents for the destruction of consti- 
tutional liberty. 

" "While fighting this battle for constitutional liberty, it be- 
hoves us to see to it that the Constitution receives no detriment 
at our hands. We will have gained but little in suppressing 
the insurrection, if it be at the expense of the Constitution. 
The chains that a bondman Avears are none the lighter because 
they were forged by his own hands. Let us preserve the Con- 
stitution perfect in all its parts, with all its guarantees for the 
protection of life and liberty unimpaired." 



CONFISCATION AND ATTAINDER. 351 



No. m. 

Maech 6, 1862. 

The following numbered postulates need no proof, but will 
be recognized by every constitutional lawyer as of near kin to 
axiomatic principles : 

1. Congress has none but legislative powers. It can exercise 
neither judicial nor executive functions. Its power is exclusively 
mandatory, — to the judiciary and the executive belong the 
execution of its mandates. 

2. Neither the judiciary nor the executive can legislate; nor 
can either exercise a function properly belonging to the other. 

Hence the necessity for the conjoint action of the legislative 
with one of the other -departments, for the legal execution of 
any Congressional will. • 

3. To prescribe a penalty is legislation; to ascertain guilt and 
enforce the penalty belongs to the judicial functions. 

Hence Congress cannot deprive a citizen of his property 
" without due process of law," — that is, judicial process. Hence, 
also, there was little need for prohibiting bills of attainder, if 
the bill of rights had originally been part of the Constitution. 

4. The Government has no absolute right of eminent do- 
main over private property in a republic. 

Hence private property cannot be taken by our Government 
but for public use, and not even then "without just compen- 
sation." 

5. Except as punishment for crime or violation of law, Con- 
gress has no power of confiscation or forfeiture over the pro- 
perty of citizens, the confiscation or forfeiture being a mere 
incident to the power to punish. To ascertain the crime or 
violation *of law and inflict the penalty is an exclusively judicial 
function. 

Hence no forfeiture or confiscation can be legally enforced 
without a judicial sentence; nor except as a penalty for some 



352 CONFISCATION AND ATTAINDER. 

act which Congress is authorized so to punish. The case of 
the Venus, (8 Cranch, 253), relied upon by Senator Trumbull, 
is no authority to prove power to confiscate property of a citi- 
zen, otherwise than as an incident to the power to punish crime. 
It is rather an authority the other way. The confiscation was 
maintained on the ground that the claimant by his domicil in 
England having acquired a right to protection of the English 
Government, had lost his right to the protection of ours for 
his goods in an enemy's ship, though he still remained a citi- 
zen of this country. The very basis of the decision was, that 
he no longer retained all the complete rights of a citizen ; or 
that his property connected with the trade of the enemy, was 
"adhering to the enemy," and therefore subject to confisca- 
tion, though he himself" cannot be considered an enemy in the 
strict sense of the word. His other case of Cooper vs. Tellfair, 
(6 Dallas), has as little application, having been decided in re- 
ference to a confiscation made by the Legislature of Georgia, 
before the adoption of the Constitution of the United States, 
and there being nothing in that of Georgia to prevent such 
confiscation. So, also, as to his Maryland case, (6 Cranch). The 
facts of the case recently decided by Judge Sprague are too 
imperfectly stated to permit an opinion as to the correctness 
of the decision, or whether it had any bearing on the subject. 

6. A leading object of the Constitution was to secure the 
right of trial by jury; it declaring that " the trial of all crimes, 
except in cases of impeachment, shall be by jury." 

Hence the anomalous proceedings in rem for the confiscation 
of smuggled goods, &c., if not of doubtful constitutionality, 
can never serve as analogy for the extension of such mode 
of proceeding to new subjects, in derogation of the right of 
trial by jury. It can never be done except where the particu- 
lar use made of movable property renders it liable, like smug- 
gled goods, to seizure without reference to any criminal offence 
committed. by its owner. Mere ownership by a rebel traitor is 
not such use. Otherwise the limitation to the power of Con- 
gress in punishing treason by forfeiture would be of no avail. 

7. Treason is a " capital and infamous crime," for which no 
man can be punished by forfeiture of his property, or other- 
wise "held to answer, unless on indictment of a grand jury." 



CONFISCATION AND ATTAINDER. 353 

Hence the attempt of the bill before the Senate to punish 
treason by mere information or proceeding in rem, without the 
interposition of g-rand or petty jury, is clearly nugatory. By 
no chicanery or legal device can the reign of Empsom and Dud- 
ley be established in this country. 

The difficulty, if not impracticability, of obtaining forfeitures 
against such a multitude as are now in rebellion, by due pro- 
cess of law, constitutes no sufficient reason for violating the 
Constitution and obtaining forfeitures by illegal or arbitrary 
methods. If it be a casus omissus, or if it be a faulty structure 
of government, the only proper remedy is by an amendment 
of the Constitution. For, as said by Washington, "If in the 
opinion of the people the distribution or modification of Con- 
stitutional powers be wrong in any particular, let it be corrected 
by an amendment in the way Avhieh the Constitution designates. 
But let there he no cliange hy usurpation ; for though this in one 
instance may be the instrument of good, it is the customary 
weapon by which free governments are destroyed. The pre- 
cedent must always greatly overbalance in permanent evil any 
partial or transient benefit which the use can at any time yield." 

The want of such power is no doubt very vexatious to those 
who are blinded by a rankling hate to any other consideration 
than the indulgence of a ravening thirst for vengeance ; but it 
is a great mistake to suppose that any large portion of the con- 
siderate, intelligent part of the nation will grieve over the 
escape from confiscation by self-banishment of very many of 
those engaged in rebellion. Banishment is no light punish- 
ment. According to the modern usage of Christian nations, 
it is the usual mode of punishment for even most of the lead- 
ers of rebellions. Confiscation of property, as a mode of punish- 
ment, has never been a favorite with this nation. Witness the 
fact that Congress has never to this day prescribed general con- 
fiscation as a mode of punishment for treason or any other 
crime. Witness also the other fact that all our States have 
repealed the common law penalty of forfeiture of estate, as one 
of the incidents to every judicial attainder for felony. But, 
above all, witness the restriction placed by the Constitution 
upon the discretion of even Congress in punishing treason, 
that highest crime, by forfeiture, by limiting it to the life estate 
45 



354 CONFISCATION AND ATTAINDER. 

of the offender. The enlightened friends of civil liberty, the 
admirers of the Constitution, have been wont to look upon this 
limitation to the power of vengeance as perhaps its most beau- 
tiful and lovable feature. They exultingly viewed it in pride- 
ful contrast with the unstinted power of vengeance in other 
governments, as manifested in their drawing, disembowelling, 
quartering, hanging in chains, corruption of blood, and total 
forfeiture of estate. This limitation in behalf of mercy is 
believed to have been the germinal principle in the great ame- 
lioration of the criminal codes, not only of our own States, but 
of those of Europe also. It is said that no less than fifty capi- 
tal punishments have been abolished in England during the 
present century, greatly influenced thereto as her Government 
no doubt has been by our example. Yet Senator Trumbull 
has the audacious frankness to say that the evasion of this 
wise, beneficent feature of the Constitution is the very purpose 
of his bill. After the rebellion has been suppressed, and popu- 
lar passion has had time to cool, if it should be thought that 
public justice in the way of example, or in vindication of the 
majesty of the law, requires hangings or confiscations to be 
inflicted upon some of the leaders, enough of them can no 
doubt be secured to answer that purpose. Wliatever may be 
the desire of discreet, intelligent men to see these leading 
traitors adequately punished, there are but few enlightened 
citizens who would not greatly prefer the whole should go 
unpunished, rather than the President should have the enor- 
mous perilous power over all the property of eleven States, 
which is attempted to be confided to him by this bill. 

There is one result of this bill, if it passes, of which we may 
be certain beforehand, that is, that though the President may 
perform his duty with perfect fairness and integrity, yet, in 
despite of him, the frauds and individual persecution and 
wrong practised under it, to the enriching of the vilest men 
in the country, will be beyond all precedent, and inflict a last- 
ing stigma on the Government. A result from which the 
nation will turn with loathing and disgust, learning in sorrow 
and humiliation, how much superior was the wisdom of the 
framers of the Government to that of the men of the present 
generation. Those framers intended to put it out of the power 



CONFISCATION AND ATTAINDER. 355 

of a dominant party to create a corruption fund by tlie per- 
version of the criminal justice of the nation. Tliey thought 
it better that innocent women and ehikh-en shoukl enjoy a 
traitor's property rather than it shoukl fill the maws of party 
sharks. 

8. Congress has power " to declare the punishment of 
treason," but the punishment, by way of forfeiture of i)roperty, 
shall not extend beyond the life of the person attainted — that 
is, judicially convicted. Attainder by bill being prohibited, 
there can be none but judicial attainder. 

This limitation applies to every description of estate, real or 
personal, l^o exception is made, and there is no power to 
interpolate an exception. This precludes .the Government 
from obtaining such a right in slaves by forfeiture as to author- 
ize their emancipation, even if the Government had power 
to emancipate such slaves as it may rightly own in fee. The 
tenant for life has not, and rightfully cannot have, the power 
of emancipation. The offences which the bill proposes to 
punish are all treason, and nothing but treason. It matters not 
as to the mode in which the punishment or forfeiture is inflicted, 
whether by ex parte proceeding in rem, or by indictment. Con- 
gress cannot go beyond the limitation to its power of forfei- 
ture, the power to inflict the punishment depending upon the 
Constitution equally in either mode. 

9. Congress can pass " no bill of attainder." 

Hence, if there be diflerent kinds of such bills, none can be 
passed that are in the nature of a bill of attainder. The pro- 
hibition has received and will continue to receive a liberal 
construction from the courts, covering everything in pari ma- 
teria. As said by the Supreme Court: "A bill of attainder 
may aft'ect the life of an individual, or may confiscate his pro- 
perty, or both." Or, as said by Judge Tucker, a bill of pains 
and penalties is a bill of attainder. All of them are equally 
bills of attainder, whether they designate their victims by 
name or b}^ general description fitting a multitude of persons. 

It matters not as to the degree or amount of penalty ; any 
punishment, however light, attempted to be inflicted by Con- 
gress by its own sole action, constitutes a bill of attainder. 
Outlawry is grievous punishment; so, also, is the denaturaliz- 



356 CONFISCATION AND ATTAINDER. 

ino- of citizens and converting tliem into "alien enemies," the 
attempt to inflict eitlier bringing a bill clearly within the pro- 
hibition. 

Senator Trumbull says, " this is not a bill of attainder at all; 
it does not corrupt the blood of the party, but it is a bill ope- 
rating upon property." It seems strange, very strange, that 
he should need to be told that corrupting the blood is no in- 
dispensable requisite to a bill of attainder. Does he suppose 
that Congress could order a man to be hung, and give validity 
to its act, by merely making an express reservation against the 
corrupting his blood ? Is there no end to the vagaries which 
!^et possession of the minds of men, even of those in the most 
elevated position ? 

He further says, that because Congress can confiscate the 
property of a foreign enemy, " the act of confiscation must be 
something different from a bill of attainder, because the Con- 
stitution expressly declares that no bill of attainder shall be 
passed." Such an act of confiscation is certainly a very dif- 
ferent thing from a bill of attainder. First, because an alien 
enemy is entitled to no protection under our Constitution ; 
whereas, a citizen is entitled to such protection, even though 
he be an unconvicted traitor enemy; and, second, because 
Congress has full right and power to confiscate the property 
of an enemy, whereas it has no right to confiscate the property 
of a citizen, except as punishment for crime or for violation 
of law, and all such punishments must be inflicted by the 
judiciary. 

As to his other idea of its not being a bill of attainder, be- 
cause it operates merely on property and not in personam, it is 
fully answered by the Supreme Court, which has said that it 
is none the less a bill of attainder because it merely confiscates 
property. If that answer is not conclusive, then he can find 
a sufficient objection in the clause which says, no man shall 
be deprived of his property without due process of law. 

His idea of convicting a piece of land as an active co-opera- 
tor, an aider and abettor in the rebellion, must prove a most 
desperate eflfort before any tribunal having a particle of com- 
mon sense. Yet that idea, superlatively absurd as it is, forms 
the very basis of his bill for subjecting the whole estate to 



CONFISCATION AND ATTAINDER. 357 

confiscation, and getting rid of the necessity for grand and 
petit jurors. His scheme is to treat the crime of the owner as 
the crime of the property, and to punish the property instead 
of the owner, not perceiving that his imputed punishment of 
the property is nothing but punishment of the owner, the ex- 
tent of which is limited by the Constitution, whatever may be 
the mode used by tlie Government in applying the punishment. 

10. The law of nations has no bearing or operation within 
our own territory, as between our citizens and their own Gov- 
ernment. It expressly repudiates any such pretension in its 
own behalf, declaring explicitly that its only operation is be- 
tween different nations, as nations regulating their relations 
toward each other, whether in peace or war. 

Hence our Government can derive no power whatever from 
that law ; but the law itself is wholly dependent upon the will 
of our Government for its being recognized here at all. We 
do not need that law to toll us we may confiscate the property 
of an enemy ; for even when recognized and acquiesced in, it 
only serves to mitigate, not to create, an otherwise clear natural 
right Still less do we need that law to toll us when and how 
we may confiscate the property of our own citizens, or punish 
their crimes. That all depends exclusively upon our own na- 
tional volition. The nation has in the Constitution fully ex- 
pressed its will on that whole subject, and that will so expressed 
is the only law for its own government. Especially as to the 
crime of treason, which it is the sole purpose of this bill to 
punish, the Constitution is very explicit. After carefully de- 
fining the crime, it gives Congress the poAver to prescribe its 
punishment under a fixed limitation as to the extent of punish- 
ment. Within that limit Congress may use any mode of pun- 
ishment — fine, imprisonment, confiscation, banishment, or 
death. It may, as now, punish with death alone, or by confis- 
cation alone, or by confiscation in combination with banish- 
ment. But, wdiatever the punishment, it can be inflicted only 
by the judiciary, or, in other words, by due process of law. 

In defining treason to be the levying of war against the 
United States, the Constitution has told us that we may liave 
citizen enemies, and in limiting the amount of confiscation to 



358 CONFISCATION AND ATTAINDER. 

be used in pmiisliiDg treason, it concedes it right so to punish 
it within that limit. How and by whom that punishment may 
be inflicted, its other provisions fully and clearly point out. 
If the remedy is seemingly too slow, or if it be inefllcient, or 
if there are cases which the remedy will not reach, that was 
all foreknown, and it was made so in avoidance of supposed 
greater evils ; but, above all, in full answer to all cavils, be- 
cause such was the national will. That wnll is the paramount 
law of the land, which cannot be altered in the slightest de- 
gree by the combined wills and laws of all the nations of the 
earth. A deliberate effort knowingly to transgress that will 
by any of our sworn functionaries is moral treason of the deep- 
est dye. An appeal to the law of war, in justification of such 
transgression, is merely preposterous. If that law is consonant 
to, or is derived from, the Constitution, then it is a mere ap- 
peal from the Constitution to the Constitution itself. If it be 
different from the constitutional law of war, being a bastard 
law, having no paternity but that of his Satanic majest}^, or some 
of his progeny, the execrable race of usurpers', then the nation, 
with all the emphasis of the whole Constitution, has denounced 
it as no law, but as an accursed thing to be shunned and avoided 
for any and every purpose. 

"When the Constitution gave Congress power to make rules 
for the government and regulation of the "land and naval 
forces," it gave plenary authority to Congress to make all the 
law of war, whether foreign or intestine, permissible in this 
country. There it is, ample, complete, unstinted, leaving no 
need to borrow from any supposed law of foreign war, or any 
law of nations. K there is any desired power which Congress 
cannot confer on the land and naval forces, it must be because 
of some express inhibition of the Constitution, which equally 
applies to the President and all our military commanders. 
They can have no power which Congress, the sole arbiter of 
the law of war, cannot directly confer, as they have no power 
of waging war which Congress cannot repeal out of their 
hands. They are as much bound by the Constitution as if it 
were bodily engrafted by Congress into the rules and articles 
of war. It is, therefore, merely absurd to attempt to derive 



CONFISCATION AND ATTAINDER. 359 

any extraordinaiy power either to Congress, the President, or 
the army, from the so-called law of war. The Constitution is 
the sole paramount law of war. May it ever remain so in 
practice as well as theory. 



Note. — " It is admitted by Senators that the words of the Constitution do 
not forbid the forfeiture of personal estate ; so that a person attainted of trea- 
son -would be made to forfeit all his personal estate, no matter what its 
amount." — Senafoj- SiiJnner, Congressional Globe, 2190. 

To prevent a repetition of such blunders, attention is invited to the follow- 
ing citations from so familiar and accurate authority as Blackstone's Com- 
mentaries : 

"By attainder for treason or other felony, forfeiture of lands and of what- 
soever the offender possessed, was the doctrine of the old Saxon law." — Yoh 
2, 251. 

" Upon judgment of outla-\vry or of death, for treason or felony, a man shall 
be said to be attainted." — Vol. 4, 381. 

" The forfeiture of goods and chattels accrues in every one of the higher 
kinds of offence : in high treason or misprision thereof, petit treason, felonies 
of all sorts, whether clergyable or not," etc. — Vol. 4, 386. 

" There is a difference between the forfeiture of lands and of goods and 
chattels. Lands are forfeited upon attainder and not before ; goods and chat- 
tels are forfeited by conviction. Because, in many of the cases where goods 
are forfeited there never is any attainder; whicli happens only where judg- 
ment of death or outlawry is given. The forfeiture of lands has relation to 
the time of the fact committed, so as to avoid subsequent sales and convey- 
ances ; but the forfeiture of chattels has no relation backwards ; so that those 
only which a man has at the time of conviction sKall be forfeited. Therefore, 
a traitor or felon maj-, honajide, sell any of his chattels, real or personal, be- 
tween tlie fact and conviction, for no buyer could be safe if he were liable to 
return the goods he had fairly bought, provided any of the prior vendors had 
committed treason or felony." — Vol. 4, 387. 

Hence the only difference between a forfeiture of land and a forfeiture of 
goods by attainder was, that the former related back to the date of the offence, 
whereas the latter related back only to the time of conviction. For obvious 
reasons the conviction gave the right to sequester personality, but it amounted 
only to an inchoate forfeiture till judgment upon the conviction, when the at- 
tainder and consequent forfeiture became complete. Before that the Crown 
could neither sell nor donate the chattels. It Avas the attainder that made 
the forfeiture complete in both instances. 

Therefore, the Constitution, in saying " no attainder of treason shall work 
forfeiture, except during the life of the person attainted," includes personal 
as much as real estate. 

Therefore, also, Congress can in noway, directly or indirectly, punish trea- 



360 CONFISCATION AND ATTAINDER. 

son by emancipation ; for qtio ad the punishment of treason the owner of a 
slave has only a life estate, and the owner of such life estate has no power of 
emancipation. Or, at most, all that Congress could do in the way of penalty, 
would be to emancipate during the life of the owner ; but this would be so 
manifestly unjust to the remainder-man that no fair-minded person would 
contend for that mode of exercising the power. 

There is still a stronger reason against such exercise of the supposed power. 
Senator Sumner, in the same speech, (page 2190) admits: "Congress has no 
power under the Constitution over slavery in the States." " Congress has no 
direct power over slavery in the States so as to abolish or limit it." Now, all 
the slave States prohibit emancipation, except in the manner their statutes 
specially prescribe. Congress can rightfully, legally, do nothing in reference 
to this peculiar property, whether by way of punishment or otherwise, in 
violation of this necessary settled policy of those States. Congress may for- 
feit and hold, or forfeit and sell slaves by due process of law, in punishment 
of treason, but the Government or its purchaser must take and hold the pro- 
perty subject to the State law. ;) 

This equally disposes of all claim of power in the President, or one of his 
sub-military commanders, to emancipate by proclamation. They can have in 
that particular, or any other, no power not given by Congress expressly or 
impliedly. As Congress cannot give such power directly, it cannot be im- 
plied. If claimed as an incident to the right of eminent domain, then it be- 
comes private property taken for public use, for which just compensation 
must be made to the owner, according to the recent precedent of emancipation 
in the District of Columbia. If claimed as an incident to the power of carry- 
ing on the war, then it is met by that highest authority, the Declaration of 
Independence, denouncing it as contrary to the usages of civilized warfare. 
It therefore cannot be implied in the silence of the rules and articles of war 
nor can Congress rightfully make it part of them. 



LAW AND CONSTITUTIONAL REFORM. 361 



CHAPTER XYIII. 

1849. 
LAW AND CONSTITUTIONAL REFORM. 

JURY SYSTEM. 

The first half of the present centur}^ has been signalized for 
the extent and judicious character of the law reforms made 
in this country and in Europe. The latter half of the century 
promises to be still more signalized in the same way. The 
work may be said to have commenced in the latter part of the 
last century, by the earlier legislation of our States, in extir- 
pating much of the feudal system engrafted on the common 
law, and by the change in the law of descents, and the abolition 
of the law of entail, adapting the common law to our repub- 
lican institutions. The most extensive and thorough reforma- 
tion was that effected in France, under Bonaparte, by the 
adoption of what is known under the name of the Code Xapo- 
leon. Our States have been gradually but unremittingly car- 
rying on the reformation, by partial, detached legislation, with 
various deg-rees of boldness and skill. Under the influence of 
our successful example, England has within the last twenty or 
thirty years set herself seriously to work in the same way, and, by 
the superior care and artist-like skill manifested in what she has 
done, has put most of our work to shame for its want of com- 
prehensive and consistent design, and especially for its lack of 
ekill and completeness in the finish. Among ourselves the 
New Yorkers have borne the palm, not merely in skill, but in 
boldness also. They alone, until very recently, have had the 
good sense, like England, to entrust the work to boards of 
commissioners appointed for that purj^ose. The consequence 
is, that, in a very few years, they have attained a point, ap- 
proaching thorough reform, full a century in advance of Ken- 
46 



362 LAW AND CONSTITUTIONAL REFORM. 

tucky and tliose other States, who hke her will wait for reform 
upon the ill-devised and worse executed acts of occasional 
legislation. What New York had already done, though of 
startling intrepidity to most of the legal men in other States, 
was so successful in the estimation of its own citizens, that the 
recent Convention held for the revision of the Constitution 
urged the work forward, by making it the duty of the Legis- 
lature to appoint a board of three commissioners to revise, 
reform, simplify, and abridge the rules of practice and plead- 
ing and forms of proceeding in courts of record. The board 
organized under this direction have reported a code, which 
has been adopted by the Legislature, that not merely reforms, 
but entirely revolutionizes, the modes of procedure in courts. 
It is understood not merely to have abolished all distinction in 
the forms of action, reducing all to the simple form of the 
petition of the civil law or the bill in chancery, allowing only 
one plea or response, disallowing all pleading after replication, 
and doing away with all distinction between chancery and com- 
mon law jurisdiction. 

The object of most of these reforms everywhere has been 
to diminish the uncertainty, the delay, and the expense of liti- 
gation. There is no little hazard in undertaking to speak upon 
the mere reported purport of the JSTew York system. But no 
practical lawyer will feel any hazard in predicting, if the report 
be correct, that it will prove a most signal failure, and that its 
result will prove a great increase in the uncertainty, the delay, 
and the expense of litigation. This opinion is ventured because 
the New York Convention has retained in their new Constitu- 
tion a clause similar to that in the Constitution of Kentucky, 
which says : " The ancient mode of trial by jury shall be held sacred 
and the right thereof remain inviolate." Now, if the construction 
there be, as it is here, to secure the jury trial in civil as well as 
criminal cases, then one of two results must ensue — either all 
cases must pass through the hands of a jury, which would 
unavoidably render the dispatch of litigation perfectly imprac- 
ticable, or the disputes arising out of the question, whether cases 
properly belong to the jury or to the court acting as chancellor, 
will create as much delay and litigation as the adjustment of 
the pleadings under the old common law forms of action. A 



LAW AND CONSTITUTIONAL REFORM. 3G3 

clause of the new CoDstitution of Xew York requires that " the 
testimony in equity cases sliall be taken in like manner as in 
cases at law." Understanding this clause not merely by its 
literal import, but also from the discussion in the Convention 
which induced its adoption, the intention actually was, strange 
as it may appear, to compel the judges who decided equity 
causes to hear the proof ore tenus at the bar. Every practical 
lawyer knows that if they do this, and superintend the taking 
down of the proof, their whole time will be consumed thereby, 
or that they will have so little left as to disable them from dis- 
charging their other functions as common law judges, and the 
necessary consequence must be greatly to retard instead of 
accelerating the trial of both common law and chancery causes. 
Under our system of allowing any justice of the peace or notary 
public to take proof, the preparation of a hundred chancery 
causes can be carried on simultaneously in the same court ; 
whereas, under this new system, the proof in only one cause 
can be heard and taken at a time, and all other causes in court 
must wait upon that. This seems so perfectly preposterous 
that the presumption is we do not properly understand their 
system, and that their language does not actually mean what it 
so clearly seems to import. The fault of the old chancery sys- 
tem of New York was in expecting a single judge to dispose 
of the chancery business of three millions of people, when our 
practical Kentucky experience has proved that it will require 
the exclusive time and attention of at least eight judges to do 
the same business for six hundred thousand people scattered 
over the State ; provided it be done in the convenient mode of 
having a chancery court held twice a year in each county. 

The result of all these multitudinous reforms has been, both 
in this country and England, to strip English jurisprudence of 
that imputed sanctity and perfection of wisdom, which alone 
has for centuries preserved in use principles and modes of pro- 
cedure that are foul blemishes on any code, and could only have 
originated in an age of barbaric ignorance and superstition. 

AVhilst all the, reforms of law proceedings look mainly to 
diminish the uncertainty, the delay, and the ex-pense of litiga- 
tion, none of them have struck at that, which, beyond all other 
things in our judicial system, tends most to produce uncer- 



364 LAW AND CONSTITUTIONAL REFORM. 

taiiity, delay, and expense — that is, the use of juries in the trial 
of civil causes. "When the American people have long since 
exploded the idea that any degree of antiquity, or any amount 
of immemorial usage, can consecrate a folly or inconvenience, 
our jurisprudence, whilst the English themselves are freely 
applying the reforming knife to many of their own most ancient 
and sanctified legal forms and usages, it may be permitted to 
inquire whether the use of juries, which has so long proved 
such an incubus upon the administration of justice in civil 
causes, is such a necessary and unavoidable evil that we cannot 
even partially relieve ourselves from it. It is true the late 
Convention of 'New York seems to have felt the evil and un- 
derstood the necessity for a change, yet they lacked the cou- 
rage to make the necessary reform. All the action of that Con- 
vention seems to have been mainly influenced by deference to 
a supposed popular sentiment. "Whilst bowing to the very dust 
in pretended homage to the infallibility of that sentiment, it 
could not be expected of such men that they should do aught 
which seemed to trench upon the popular participation in the 
administration of the law and justice of the country. Hence, 
they contented themselves with solemnly declaring in their 
Constitution that " a jury trial may be waived by the parties 
in all civil causes." A most timid, puerile, and imbecile effort 
truly. This is a right which they would have had, as they 
always have had, without their gracious sanction. It is a right 
that seldom or never has been or will be exercised whilst the 
law}^ers understand the advantage of a concluding speech to a 
jury, and the advantage which a bad cause has in being sub- 
mitted to the uncertain decision of such a tribunal. 

In the first place, twelve is a most inconvenient and too large 
a number for the jury. "We have no distinct historical infor- 
mation why this number was adopted. Lord Coke conjectures 
that it was in analogy to the twelve Apostles, or the twelve 
tribes of Israel, and as no better reason is given in favor of the 
number by any of the encomiasts or apologists for the system, 
we may well infer that to be about the best reason which can 
be given in its favor. "Whatever force such a reason may have 
had with legislators a thousand years ago, it needs no answer 
at the present day. Its bare statement carries with it the ex 



LAW AND CONSTITUTIONAL REFORM . 3G5 

position of its absurdity. The whole range of liuman expe- 
rience in the affairs of life does not afford a solitary example 
where men of intelligence, in their voluntary private action, 
have indicated that as the proper number of men to discharge 
such a duty or function. On the contraiy, men most com- 
monly refer their private disputes to the arbitrament of a single 
man, or to that of two men and their umpire. iN'o intelligent 
man could well be induced voluntarily to refer a heavy and 
complicated controversy to a mob of twelve arbitrators. If he 
had confidence in his case, nothing could induce him to do it 
but the privilege of naming the whole twelve himself. Yet 
this function of arbitrators, no more or less, is precisely the 
duty the law ajipoints the jury to perform between litigants 
who will not voluntarily submit to arbitration. It may well 
be concluded, therefore, that the judgment and experience of 
every intelligent man, as evidenced in the management of his 
private affairs, is against the number as entirely too large. That 
same unerring guide would seem to point to about four as the 
largest suitable number, \vith the power in three to control the 
verdict. A system which thus runs counter to, and thwarts the 
settled convictions of every intelligent man in society, needs no 
other exposure to prove its unsoudness, or to show that it is not 
based upon sound principles, either of justice or policy, and 
that it owes its adoption and continuance to some antiquated 
superstition or phantasy — to some motive other than that of 
promoting the true administration of justice. IS'or do we lack 
the frequent example of society at large, when voluntarily acting 
for itself, in modern times, in the formation of governments, 
equally to prove that the number is too large, and that at most 
it should not exceed about four. The best example that the 
world affords on this subject is that to be found in our State 
Constitutions. A large majority of them, probably four-fifths 
if not nine-tenths, limit the number of judges to three or four 
for administering all the large powers of the Supreme Court, 
or court of final resort in a State. Indeed, practical experience 
has long since proved to the legal profession that four is the 
highest number of judges that can advantageously co-oi>erate 
in the decision of causes, "\^^len more than four, they prove 
a hindrance rather than aid to each other, and when as many 



366 LAW AND CONSTITUTIONAL EEFORM. 

as six or seven, they partake more or leSs of tlie nature 
of a mob, an epitliet by wliicli that exalted tribunal, the Su- 
preme Court of the United States, has irrpverently been cha- 
racterized by many intelligent men. Upon the mere abstract 
principle of law, twelve learned judges would rarely disagree ; 
but in the ascertainment of the facts, and the application of the 
law to the facts, arise the great difficulty in most causes. It is 
here that, with all their learning and experience, they neces- 
sarily and unavoidably disagree. Yet thi^ is precisely the func- 
tion that twelve inexpert jurors have to perform, and the law 
neither contemplates nor tolerates disagreement among them. 
The ancient law of their institution contemplates that they 
should be coerced into agreement by starvation. Even if they 
resort to that primitive mode of settling the difficulty, for which 
they have apostolic sanction, and draw lots for the verdict, this 
vitiates the verdict, if it comes to the knowledge of the judge, 
and he is bound to punish them therefor. 

And here lies the second great fundamental objection to the 
jury system, the requiring unanimity on the part of the jurors. 
"Why this pernicious anomaly was engrafted on the system, we 
are not told by the books. It is based on no example of either 
the apostles or the twelve tribes. It is sustained by no analogy 
in any other department of the law or machinery of Govern- 
ment. It is sanctioned by none of the usages of civilized so- 
ciety, as indicated by single men or collections of men in the 
transaction of their private affixirs. On the contrary, the whole 
individual and collective action of society, whether in dis- 
charging the duties of members of a convention, members of 
the Legislature, judges on the bench, trustees of towns or 
corporations, and private arbitrators, is allowed to be performed 
by a plurality or some larger majority of votes. Probably, if 
the whole legislation of England and these States, for a century 
past, were thoroughly ransacked, not a single instance could 
be found where a duty of any character, public or private, judi- 
cial or otherwise, was imposed upon twelve men and unanimity 
required from them, other than as part of this jury system. It 
may, therefore, be confidently pronounced to be repugnant to 
the enlightened, practical common sense of both nations at the 
present day. If it had none of the sanctity of immemorial 



LAW AND C X S T I T U T I N A L R E F 11 M . 3G7 

usage, and was now for the first time proposed as an oriijinal 
institution, it would not receive one vote in a, thousand. It is 
a dark blemish — a sad reproach to the wisdom of English and 
American jurisprudence. 

Judge Christian, the learned annotator on Blackstone, says : 
" The unanimity of twelve men, so repugnant to all experience 
of human conduct, passions, and understandings, could hardly 
in any age have been introduced into practice by a deliberate 
act of the Legislature." The time and cause of its introduc- 
tion as a part of English jurisprudence, he treats as one of the 
most obscure and inexplicable parts of the history of the laws 
of England. He conjectures that the ordinary inquest, like 
the grand jury, might originally have consisted of some twenty 
or other number more than twelve, but less than twenty-four, 
and that out of so many the concurrence of at least twelve 
was, as it still is with a grand jury, necessary to a finding, and 
that in the lapse of time, for the sake of mere convenience, they 
ceased to empanel more than the twelve who were indispens- 
able to a verdict. Thus, by a mere change of practice as to 
the number empaneled, unanimitj- in the jury became an ac- 
cidental innovation upon the system as originally established, 
and even the dark, barbaric age in which the system had its 
origin, is not liable to the charge of the folly implied in the 
voluntary and designed requisition, — that it is in truth an ac- 
cidental, not a designed, change of the original system, which 
only required a bare majority, twenty-three being the full 
number of the inquest. 

Another not improbable conjecture is, that it ma}- in no 
small degree owe its origin to the contempt in which the 
judges of early times held the intelligence and integrity of 
jurors and sheriffs, before whom inquests were then ordinarily 
held; deeming nothing less than the unanimous concurrence 
of the whole of twelve such men as a sufficient authentication 
of any fact. Of this contempt for jurors we have abundant 
evidence in the fact that the law required them to be kept 
without meat, drink, fire, or candle, until they agree in their 
verdict, and if they would not agree, the judge might have 
them cartered like malefactors from town to town round his 
whole circuit. The rigor of this discipline toward jurors 



368 LAW AND CONSTITUTIONAL REFORM. 

gradually fell into disuse, until the judges began to feel a dis- 
cretionary power over tlie wliole of it, and suiFered nearly the 
whole to fall into disuse. But it was in truth as much a part 
of the jury system as the required unanimity, and the judges 
had in strictness no more power to dispense with the one than 
the other. If, then, the imputed wisdom and sanctity due to a 
system, because of its adoption by a remote ancestry of Anglo- 
Danes or Anglo-Saxons, are to be weighed in the scales, then 
let us take their system and judge of its wisdom as a whole as 
they formed it, and not as it has been adulterated by their less 
remote posterity — the vassals or liege-men of the N'orman 
conqueror. If modern light and intelligence compel us to 
abolish part of the system, it cannot be a much greater degree 
of irreverence toward antiquity if we submit to the coercion 
of that same light and intelligence in abolishing that other 
still more faulty part, which was the sole occasion for that se- 
vere discipline. It must have been an ignorant and barbaric 
age indeed which compelled a man to swear to return a true 
verdict according to his own judgment, and then starve him 
into a violation of his oath, by a surrender of his own judg- 
ment to that of his fellow-jurors. It is a part of the progeny 
of that same wisdom, which instituted the ordeal and the trial 
by battle. They are equally entitled to our reverence and re- 
spect. It makes or may make the decision of the cause turn 
upon the question, whether a personal friend of one of the 
parties may chance to be upon the jury, and whether he can 
stand starvation better than his fellow-jurors. Even the miti- 
gated system of discipline employed toward jurors in modern 
times, is a no inefficient coercion upon men to surrender their 
consciences for the sake of their personal ease and comfort. 
It is a snare for the consciences of men. The frequent recur- 
rence deadens their conscience, and diminishes with society 
generally, the standard of the moral obligation of an oath, 
which the law should so sedulously inculcate. It is matter of 
no little coercion upon ordinary men to be kept for days and 
nights in a jury room, secluded from their families and business 
and all the comforts of their homes. Convene tog-ether twelve 
of the ablest judges of the Union, if they be properly scrupu- 
lous and regardful of the moral obligations of an oath, and no 



L A ^Y AND CONSTITUTIONAL R E F 11 .M . 309 

temptation would iiuluec tliem to take tlic oath to return a 
true and unanimous verdict, in a complicated cause dependent 
upon the contradictory statements of many witnesses, under 
the penalty, in case of disa^^reement, of being subjected to an 
indefinite continuance of even that amount of coercion. The}-, 
each of them, know from personal experience that it is next 
to impossible they should all conscientiously agree in the same 
verdict. Indeed, when it is known that a juiy has been for 
some time hung, it is with a feeling of regret that a conscien- 
tious man sees them afterwards come into court and announce 
that they have agreed in their verdict. There is an involun- 
tary feeling of apprehension that there must have been some- 
where a straining of conscience. Can a system be right which 
unavoidably leads to such consequences ? Can a system be 
right which puts it in the power of a single ignorant, and 
obstinate, or dishonest man to subject eleven respectable men 
to such personal hardship and inconvenience ? Can it be right, 
when it subjects the administration of justice to be thwarted 
and defeated by a single fool or knave, found among twelve 
men, accidentally picked up from the mass of society ? Yet 
such is our jury system, sanctified almost by the use of ages. 
So sanctified as to render it the extreme of temerity in any 
man to even attempt to assail it. 

When any sj'stem of jurisprudence challenges for itself such 
sanctity and imputed infallibility of wisdom as places it above 
scrutiny, and all attempts at reform, it ought to be coherent 
throughout, and at least consistent with itself. ITow the prin- 
ciples of law are, or ought to be, or at least are presumed to 
be known certain, or at any rate certainly ascertainable, and 
not dependent upon the uncertain, fluctuating opinions of the 
fallible judges appointed to administer the law. It would 
seem, therefore, that there ought to be no difference of opinion 
among honest, competent judges in determining what the law 
is, and it might with much plausibility of right, reason, and 
policy be contended that no freeman should be deprived of 
his life, liberty, or property, unless so small a number as oidy 
three or four judges should concur in pronouncing the law to 
be against him. Yet, in no instance, either in England or this 
country, is more than a bare majority of judges required. Xor 
47 



370 LAW AND COXSTITUTIOXAL REFORM. 

is this confined to the adjudicating of mere questions of law. 
The rule is the same as to all questions of fact. By far the 
most difficult and complicated litigation as to the matters of 
fact, and by much the heaviest in amount, is on the chancery 
side of the court. There a single judge decides for himself in 
the first instance, all questions of fact, though they may involve 
millions, and his decision is finally reversed by two out of three 
judges of the court of appeals. N"ay, even in common law 
causes, when the judges come to supervise the facts, in England 
a bare majority can set aside any number of verdicts as con- 
trary to the evidence, and with us two of the three judges of 
the appelate court can set aside for the same cause two suc- 
cessive verdicts, even though they were approved by the pre- 
siding judge in the circuit court. Why is this ? "Why,- when 
the number of judges is so small, when they are so much bet- 
ter qualified to understand a case, so much better opportunity 
and leisure for its proper investigation, and when there is 
every reason for supposing them so much more apt than twelve 
jurors to come honestly to an unanimous decision, why are they 
not required to be unanimous when deciding mere matters of 
fact ? Simply because the common law held the decision of a 
jury in such perfect contempt, when it came in conflict with 
that of a judge, and when the question has been presented to 
modern legislators, they have deemed it utterly preposterous 
to allow the opinion of one to negative or control that of two 
judges. How much more ridiculous to allow the opinion of 
one juror to control that of eleven others ! 

Prolix as these remarks may appear to some, they are a mere 
outline of the objections to the number of jurors, and the rule 
requiring their unanimity. They are made, principally, in the 
hope that they may aid in bringing about the necessary reform 
in our civil jurisprudence. Most of them equally apply to the 
administration of our criminal code. The number is too large 
even for criminal cases, and a large majority, such as two-thirds 
or three-fourths, ought to control the verdict in criminal cases 
also. Under an arbitrary government, where the governors 
are a distinct hereditary class, having distinct interests from 
the governed, the unanimous verdict of twelve men may be a 
necessary safeguard to the citizen against the oppression of 



LAW A X D C X S T I T U T I X A L R E F R M . 371 

liis Govenimeut But in a mild, paternal Government like 
ours, where there is no distinction of rights and interests be- 
tween the governors and the governed, and especially where 
we have such a mild penal code, enforced with so much leni- 
ency, there is no conceivable reason of justice or policy ade- 
quate to prove that the verdict should not be controlled in 
criminal cases by two-thirds or three-fourths of the jurors. It 
is believed that public sentiment in this State denuinds a more 
prompt and certain administration of the criminal law. Every 
man can readily understand, without explanation, how the 
proposed change would tend to greatly promote that desirable 
object. All that is hoped for is, that the Convention shall leave 
it in the discretion of the Legislature to make trial of such 
change. 

It is proposed, in future numbers, further to develop the per- 
nicious influence of the jury system in the trial of civil causes; 
its promotion and delay of litigation ; the onerous burden it 
imposes on witnesses, and those who serve as jurors ; the bur- 
den it imposes on the State treasury and the pockets of the 
people ; and thence to infer the necessity of leaving it discre- 
tionary with the Legislature to abolish the system altogether 
in civil actions growing out of contract, or, which would be 
still better, in all actions but such as where the amount of re- 
covery cannot be measured by any certain rule or standard, or 
it rests mainly in the discretion of a jury. Also to allow the 
Legislature, in its discretion, to reduce the number of jurors 
in civil cases to at least six or seven, and sutler four or five to 
control the verdict. 

It is scarcely credible that the English should have so long 
submitted to the inconvenience and expense of the jury system 
in civil causes, if it be not in actual practice there a very dif- 
ferent system from what it is with us. There is good reason 
for supposing that it is so. There, either party has the privi- 
lege of requiring what is called a picked jury; that is, a jury 
in point of character and intelligence much above the average 
of ordinary juries. He does this at the hazard of being made 
to pay the extra costs of a special jury only in tbe event the 
judge shall certify that the cause did not, from its magnitude 
or difficulty, require such a jury. This is a practice wholly un- 



372 LAW AND COXSTITUTIOXAL REFORM. 

known to us. Here the litigant has to submit his cause to such 
a jury as he may chance to find in the box, however illy quali- 
fied they may be for deciding such a case. From the larger 
amount of population, and consequent greater amount of ma- 
terial from which to make proper selections, the presumption 
is that the average quality of their jurors is much superior to 
ours. But the great point of distinction betw^een the practice 
under the system there and here is, that there the presiding 
judge always gives a charge to the jury in both civil and crimi- 
nal cases, whereas, here, and also in most of the other South- 
ern and South-western States, he does not. This charge, fol- 
lowing the concluding speech of counsel, enables the judge 
to remove or neutralize its undue influence. In his charge, 
the judge not merely discusses the facts, show^s their true bear- 
ing upon the point in issue, elucidates the application of the 
law to the facts, tells the jury what matters of fact or argu- 
ment to discard from their consideration as irrelevant, but also, 
whenever he chooses, exercises the privilege of telling them 
his own opinion on the facts. Such must be the controlling 
influence of these charges upon the minds of the jurymen that 
they no doubt, with few exceptions, regulate the verdict. In 
this way much more certainty and correctness of decision is 
obtained there than with us. One of the great vexations of 
the system here, is the uncertainty of obtaining any verdict at 
all — an uncertainty which is enhanced just in proportion to 
the amount of time and labor that are consumed in the trial of 
a cause. A single cause not unfrequently occupies an entire 
week, at an expense to the Commonwealth of at least one 
hundred and fifty dollars, and full as much more to the parties, 
not merely retarding all other business on the docket, but so 
deranging it as to preclude all certainty for a hearing of any 
cause during the balance of the term, and still at the end of 
all this time and labor, the chances are there will be no deci- 
sion, because the jury cannot agree. But heavy as that griev- 
ance is, it is light in comparison to the undue and imj^roper 
influence of counsel, and especially of the concluding speech. 
In any difficult, contested case, when counsel are well matched, 
the chances are equal that there will be no verdict, and at least 
three to one that the jury will be hung, or decide in favor of 



L A W AND C X S T I T U T I N A L II i: FOR 51 . 373 

tlie concluding speech. Tliere cannot well be a greater re- 
proach to any system of jurisprudence, than that after the 
parties, theu' counsel, and the court have expended a large 
amount of time, trouble, and monc}- in having the case tried, 
there should be so much hazard of mistrial, and the whole of 
their time, trouble, and money thrown away because the jury 
cannot agree upon a verdict. But it is a still heavier reproach 
to our system that the verdict should depend so much upon 
the concluding speech. That such is the fact, involves neces- 
sarily no improper reproach upon a majority of our jurors. 
They are called upon to discharge a duty for which they are 
wholly unqualified by education, habit, and experience. It 
requires much habit and training, even on the part of a well- 
educated lawyer, to recollect and understand all the proof and 
its bearing upon the point in issue in a cause. It is still more 
difficult for him on the sudden, and without time for proper 
reflection, to detect the fallacy of the arguments of ingenious 
advocates. It is perfectly absurd to expect the ability to do 
this from ignorant, inexperienced men, such as are ordinarily 
found in a jury-box. Hence the high estimate placed by dex- 
terous practitioners upon the importance of the concluding 
speech, and the great pains they take to secure that advantage 
for their client. 

The well known personal and political influence of counsel 
over jurors is another grievance. It has become a common 
habit of late to note the political complexion of juries, and 
bystanders have been able too frequently to predict a split 
among the jurors according to their party predilections. 

This improper personal and political influence of popular 
advocates, together with the uncertainty of any verdict being 
given, and the still greater uncertainty how the verdict will 
be, if given, has brought the whole system into disrepute, if 
not utter contempt, as a mode of administering civil justice. 
Litigants and lawyers, who have confidence in their cause, 
always strive to keep it away from a j ury . If a court of chancery 
has concurrent jurisdiction, or by any method it can be so con- 
trived as to give the chancellor jurisdiction, they invariably 
give him the preference. Prudent men will compromise away 
their riorhts, rather than incur tlie hazard of the issue before a 



374 LAW AND CONSTITUTIONAL REFORM. 

jury. If the system is to be kept up, it must be redeemed 
from this disrepute. This can only be done by thorough re- 
formation. 

As a practical mode of administering criminal justice it is 
in still worse repute. It has become next to impossible to 
convict a man of wealth, or one of extensive family connex- 
ion. This is because of the unanimity required in a verdict, 
and the facility of packing one or two friends on the jury. It 
is sufficiently difficult to force such a man to trial. But after 
he has had one or two mistrials, the prosecuting attorney and 
witnesses are wearied out with an apparently hopeless pursuit, 
and relax their vigilance ; the offence being stale, public indig- 
nation gradually wears out, and the offender ultimately goes 
quits from mere chicanery and delay. Whilst the prisoner is 
allow^ed twenty peremptory challenges, it would be right that 
the Commonwealth should be allowed at least five. This right 
should be secured to the Commonwealth in the new Constitu- 
tion, as it is doubtful whether the Legislature possesses the 
power, and has always refused to grant it. With this right 
and the power, in eight or nine of the jury, to control the ver- 
dict, the enforcing of our penal laws would be rendered much 
more certain. 

The personal inconvenience of serving on juries is a never 
ceasing cause of complaint on the part of those citizens who 
are compelled to perform that duty. The compensation is so 
inadequate, that it is the next thing to no compensation at all. 
It not unfrequently happens that men of business could well 
afford to pay a hundred dollars to be exempt from a single 
week's service on the jury. Poorer men cannot afford to pay 
so much for the exemption, but their time is relatively of 
equal, if not more importance to them. Both classes complain 
most justly of the loss of their time in attendance upon court, 
for the hearing of paltry litigation, which they feel and know 
would be much better settled by the judge, without their in- 
tervention. They contrast the compensation received by the 
judge and the lawyers with their own, and feel that they are 
suffering a sort of oppression. Until the number of jurors is 
reduced to four, and the class of cases greatly circumscribed 
in which they are used, the State can never afford to make 



LAW AND CONSTITUTIONAL REFORM. oT.j 

tliem adequate compensation ; and this complaint will never 
cease. It is a burden from which the Government ought most 
certainly to relieve them, as far as sound policy in the proper 
administration of justice will permit. Few men of intelligence 
will doubt that the quality of the justice administered will be 
greatly improved by abolishing the jury trial in all civil cases, 
except those where the damages lie mainly in the discretion 
of a jury. Ko man can doubt that the quality and conduct of 
the jurors wall be equally improved by reducing the number 
to four or six. It is difficult to imagine any adequate reason 
why they should not be relieved to the extent of these salutary 
changes. The only reason now recollected as ever having been 
given for keeping up the system is, that it is a mode of teach- 
ing law to the people, and disseminating legal information 
through the community. It is doubted whether any man would 
estimate it at the value of five dollai-s all the legal information 
he ever picked up by serving on a jury. The old maxim is as 
true as trite, that a little learning is a dangerous thing. It is 
especially true in reference to the law ; more so, perhaps, than 
any other department of knowledge. The best informed law- 
yers never act as their own advisers, but, like skilful physicians, 
call in the aid of a brother of the craft. The profession has an 
axiom that the lawyer who is his own counsel has a fool for a 
client. Any man who would venture to apply the few scraps 
of law picked up by serving as a juror to the regulation of his 
private affairs, would be more generally injured than benefited. 
At any rate it is a most costly mode of teaching. There would 
be great economy in employing competent professors, at ade- 
quate salaries, to traverse the State and deliver public lectures. 
If all the loss of time to litigants, jurors, and -witnesses, which 
is caused by the jury sj'stem, could be summed up and added 
to what is paid to jurors, clerks, sheriffs, and law3'ors, from the 
same cause, it would produce a sum nearly adequate to main- 
tain a system of common schools. It matters not that onh* 
some twenty or thirty thousand dollars of this large amount 
comes annually from the public treasury, and that it goes prin- 
cipally into the pockets of lawyers and officers of the court, 
and not into the coffers of the State — it is still an indirect tax 



376 LAW AND CONSTITUTIONAL REFORM. 

paid by our citizens, and improperly, because unnecessarily im- 
posed upon them by our system of Government. 

Large as is the grievance to those who serve as jurors, it is 
many times still more upon those who have to attend as wit- 
nesses. Because a man happens accidentally to be privy to a 
transaction between two litigants, he is liable to be dragged 
from a distant county, and compelled to give his personal at- 
tendance for the inadequate compensation of fifty cents a day. 
Even when he resides in the same county, it is no small bur- 
den for him to be compelled to leave his private business and 
attend court for days together, twice or three times a year, for 
several years in succession. If there is a press of business, or 
from any cause the docket becomes deranged, neither judge, 
clerk, nor lawyer can tell him certainly the day, much less the 
hour, when the cause will be called ; yet he is compelled to be 
present at the very minute. If from misinformation, or other- 
wise, he is accidentally absent at the proper minute, he is at- 
tached for contempt ; and if not fined, he is let off" by paying 
the costs of the attachment, and giving a recognizance for his 
attendance at the next term. Such is the facility of obtaining 
a continuance, that it is believed a dexterous attorney can never 
be forced into a trial, where his client has five or six material 
witnesses, unless the witnesses themselves will voluntarily aid 
in forcing him to trial. That business is not generally thus 
^vilfully procrastinated, because the attorneys are paid by the 
job, and not for each continuance. Now this presents a case 
of no small hardship upon citizens, who are compelled to at- 
tend as witnesses, upon the litigation of other men with which 
they have no sort of personal concern. This hardship will be 
more severely felt and complained of, when it becomes gener- 
ally known to be an unnecessary burden imposed by the Gov- 
ernment, as a part of jury trials, from which true policy requires 
them to be relieved, without any hazard to litigants in nine 
hundred and ninety-nine cases out of every thousand that 
occur. Except for the jury trial, the convenience of a witness 
might be consulted ; and, after an average attendance of fifteen 
or twenty minutes before some officer appointed to take the 
proof, his testimony could be written, and he thus relieved 
from all further concern about the litigation for the balance 



LAW AND CONSTITUTIONAL REFORM. 377 

of his life. It may be asked why he is not now so relieved 
from personal attendance on court ? The answer is, that the 
only pretext for a preference in favor of the jury trial, in any 
case, except those of tort,, is from the superior advantage a 
viva voce examination of witnesses, in the presence of the parties 
and the court, is supposed to afford for eviscerating the truth, 
and unmasking fabricated testimony. If the proof were ahowed 
to be taken by depositions, then there would be no pretence 
for the jury trial in nine-tenths of the cases where it is now 
used, and personal attendance of witnesses is enforced in that 
large majority of cases for no good reason which can be per- 
ceived, but for the purpose of preserving the semblance of an 
excuse for keeping up the jury system. It may be conceded 
that there is a very small class of cases that will be better un- 
derstood by judge or jury from an orc-tenus examination than 
from depositions, and that there are some witnesses fi'om whom 
the truth can be better extracted in that mode. But it is witliin 
the personal knowledge and experience of every laAvyer that 
this kind of case and witness are the rare exception, not ex- 
tending beyond one in the hundred of cases, nor one in the 
five hundred of witnesses. Why should our whole system of 
jurisprudence be regulated with a view to these rare excep- 
tions exclusively, instead of being adapted to the so much 
larger number of both cases and witnesses ? Why not sutler 
these cases to constitute an exception, in which either party 
may have the selection of the jury trial, upon the pa3-ment of 
the extra costs, according to the plan pursued in England of 
allowing special juries? The number of cases for jury trial 
would then be so small that the parties could attend on the 
assigned day, with some degree of confidence in obtaining a 
trial. Even where there was no jury, for the cause shown, an 
ore-tenus examination could be had of all the witnesses, or only 
some of them, or only in relation to a particular jioint. 

The notion which once obtained among common law lawyers 
of the preference of jury trials for investigating matters of fact 
is nearly exploded. The chancellor still has, as formerly, the 
right of directing issues of fact to be tried by a juiy, but he 
has derived so little benefit therefrom that the practice lias be- 
come almost entirely obsolete, and is never resorted to now 
48 



378 LAW AND CONSTITUTIOXAL REFORM. 

but for tlie purpose of dodging a responsibility which properly 
should be shouldered by the chancellor himself. 

We have a striking exemplification through the two courts 
sitting in Louisville of the relative merits of the modes of pro- 
cedure. The common law court having four terms in the year, 
and the chancery court sitting every week, all the business 
prepared for hearing, before either court, is promptly dis- 
patched; yet such is the supposed superior certainty in the 
decision and regular dispatch of business in the chancery court, 
that no contested case is ever carried into the common law 
court which by any contrivance can be brought into chancery. 
From this or other causes, full two-thirds, if not a larger por- 
tion, of the important litigation of this city and county is car- 
ried on in the chancery court ; and it is believed that the num- 
ber of appeals, in proportion to the amount of litigation, is as 
small or smaller than from any common law court in the State. 
Experience has proved that three or four weeks is ample time 
for the defence, preparation, and hearing of a large majority 
of the cases brought before that court. The opportunity of 
examining the whole proof on paper, and having the witnesses 
re-examined, and examined again before hearing, together with 
the total absence of all such improper arguments as are com- 
monly used to juries, the eifect of which cannot be known, 
causes the unsuccessful party to retire much better satisfied 
than he ordinarily is from a defeat before a jury. 

The practical experience of Louisiana is also strongly illus- 
trative in the same way. There either party has the privilege 
of demanding a jury trial, but the right is seldom exercised, 
and the consequence is, that litigation is dispatched with more 
certainty, promptness, and satisfaction to the parties than in 
any other State of the Union. The truth is, that a chancery 
cause with ten witnesses on each side, can be prepared forbear- 
ing with more certainty in three weeks, than a common law 
cause, w^ith only two witnesses on a side, can be got to a hearing 
at the first term. The reason is, that the deposition of a wit- 
ness can be taken under interrogatories at any hour of any day 
that may suit the convenience of the witness, and if any of them 
chance to be sick, their depositions can be taken at their homes ; 
whereas, in a common law suit, the parties and their witnesses 
must all be present at the uncertain minute, of an uncertain 



LAW AND CONSTITUTIONAL REFORM. 370 

day, when the cause may chance to be called. Another great 
advantage of the chancery mode is that testimony is seldom 
lost, and much less liable to be lost, after suit brought, by the 
death of witnesses. 

Other avocations will prevent the further extension of these 
remarks on the grievances of our juiy system, as was originally 
intended, in future numbers. The writer will close with respect- 
fully submitting to the consideration of the Convention the 
following amendment, in lieu of the present clause of the Con- 
stitution : 

"The ancient mode of trial by jury, in all prosecutions for 
penal offences on behalf of the Commonwealth, shall be held 
sacred, and the right thereof remain inviolate ; except the 
Legislature may define the causes for which the Common- 
wealth may challenge jurors, and allow challenges in her behalf, 
without cause shown, not exceeding five in number, and may 
also allow three-fourths of the jury to render a verdict." 

It is believed that the adoption of this amendment will send 
the subject to future Legislatures, wdth such force of recom- 
mendation from the Convention, as will induce them to take it 
into serious consideration, and from time to time experiment- 
ally adopt such changes in the jury system in civil causes as 
necessity shall point out and experience shall warrant. It 
would, of course, be much better if the Convention would at 
once order to be done what ought to be done, and not leave it 
to legislative discretion.. But as the subject is comparatively 
new, and as political men are instinctively timid in touch- 
ing all such questions, where there has been no opportunity of 
feeling the popular pulse, it may be best not to hazard all chance 
of reform by seeming to grasp at too much. 

There is another cause, besides the sanctity of an immemo- 
rial usage, which has so long preserved the system of jury 
trials in the States of the Union, l)ut direct reference to it has 
been forborne, as it could not well be made without some 
readers inferring an implied censure on the members of the 
writer's own profession, and his thereby incurring the hazard 
of having ascribed to him the arrogant self-assumption of ex- 
emption from the same fault. This arrogance he is so far from 
feeling, this censure he is so far from defying, that he is not 
willing even to incur the hazard of the imputation. 



380 THE NEW CONSTITUTION OF KENTUCKY. 



CHAPTER XIX. 

February, 1850. 

THE NEW CONSTITUTION OF KENTUCKY. 

No. I. 

" Men are generally more honest in tlieir private than in 
their public capacity, and will go greater lengths to serve a 
party than when tlieir own private interest is alone concerned. 
Where a great body of men act together, the check of honor is 
removed ; since a man is sure to be approved by his own party 
for what promotes its interest, and he soon learns to despise 
the clamor of adversaries. 

" Of all men that distinguish themselves by memorable 
achievements, the first place of honor seems due to legislators 
and founders of States, who transmit a system of laws and 
institutions to secure the peace, happiness, and liberty of future 
generations. As much as legislators and founders of States 
ought to be honored and respected among men, so much ought 
the founders of parties and factions to' be detested and hated. 
Factions subvert government, render laws impotent, and beget 
the fiercest animosity among men of the same nation. They 
rise most easily and propagate fastest in free governments, and 
are most difficult to eradicate. 

" When the people of Rome became very numerous, they 
were cajoled by every one that affected popularity, and were 
supported in idleness by the general distribution of corn and 
by bribes, which they received from almost every candidate. 
By this means they became every day more licentious, and the 
Campus Martins w^as a perpetual scene of tumult and sedition." 

So says the celebrated philosopher and historian Hume. 

In which of his categories are the members of the late Con- 
vention to be placed ? In that of the wise founders of stable 



THE NEW CONSTITUTION OF KENTUCKY. 381 

institutions, fit to secure tlie peace, liappincss, and liberty of 
future generations ; or as the founders of factions, by erecting 
a feeble government whicli invites tlieir assaults, and rewards 
them for corrupting it, and tiiereby rendering peace, happiness, 
and liberty insecure ? 

The short experience of fifty years gives no reason to sup- 
pose that our own is to escape the doom of all other free gov- 
ernments, and become the prey of political factions. AVe have 
rioted for half a century in the enjojTuent of an excess of liberty 
and prosperity, such as no other people knew. We have ceased 
to know, and become careless to inquire, what it is that has 
given us this liberty and prosperity. Instead of looking to and 
gratefully acknowledging the Government founded by our 
fathers, as the source of all, we repine at the slight restraints 
under which they placed themselves, as well as us, for our 
benefit and that of our posterity. We are arrogating to our- 
selves that we are a peculiar and chosen people, whom God has 
set apart for the reception of his peculiar, if not exclusive 
blessings, above all the other nations of the earth. "We have 
grown to that excess of folly to believe that, as a chosen people, 
we need no self-restraint, and may indulge freely even in licen- 
tiousness, without any peril to our liberty. "We forget, what 
all history proves, that every government must come to an end, 
and that death is its inevitable doom, as it is that of individual 
man. Like the lusty, riotous youth, we may know that it must 
die, but we take no care to preserve its healthful action, and 
thereby increase its longevity. Unmindful of that debt of 
patriotism which every generation owes to its successors, each 
one contents himself with believing it will last his time, and 
bids posterity take care of itself. Such was not the sense of 
duty of the men who framed our Government. They considered 
their powers as a sacred trust, which should be exercised as 
much for the remotest posterity as for themselves. 

Has experience thus far warranted the belief that they were 
over-cautious, and too much afraid of the influence of political 
factions ? Have we had no demagogues or popular parasites, 
no political factions carrying on inveterate, reckless contests 
for the public spoils, for all such as have been within their 
reach? Have we had no action of political parties to prove 



382 THE NEW CONSTITUTION OF KENTUCKY. 

the triitli of Hume's words, that the personal honor, which is 
so salutary a restraint upon the private individual, is lost in the 
politician, or he who becomes a heated political partizan ? Is 
not the Union itself, at this moment, in actual peril from the 
selfish manoeuvres of the two great political parties, to make 
advantage each to itself out of the action of a contemptible 
faction of abolitionists ? Did not the House of Representatives 
spend a whole month in fruitless efforts to organize itself for 
business? Is not the same true with regard to the Senate of 
Ohio, at the present, and its House of Representatives at the 
last session ? Have we not seen the Senate of Pennsylvania 
purged by a mob ? Have not poll-books been suppressed and 
altered in our State and elsewhere ? Is not bribery at elections 
and all manner of frauds upon elections rife in the land? 
Surely these are no inducements for breaking down all safe- 
guards and throwing the whole patronage of the Government 
into the arena, as additional incentive to these strifes, and as 
the abundant means with which still further to corrupt our 
elections. 

The question was raised in the first Congress held under the 
Federal Constitution, whether the President had power to 
remove ofiicers who were commissioned during good behavior 
at his mere will and pleasure. In answer to arguments based 
upon the possible abuse of such power, for the purpose of 
rewarding political partisans, Mr. Madison and other distin- 
guished members contended that no such abuse of power could 
ever arise — that it would excite the indignation of the whole 
nation, would be punished by immediate impeachments, and 
the Senate would hurl from his seat any President who dared 
so to act. What a contrast between the political principles of 
that day and this ! It is now the accredited dogma of both the 
great political parties, for they have both freely acted upon it, 
that such rewarding of political partisans with the Govern- 
ment spoils is the very purpose for which the people elect their 
President, and that he is a traitor to his party who does not' so 
reward them. 

The pmctical workings of this spoils system has been to 
throw the whole powers of the Federal and State Governments 
into the hands of parties. We have no officers but of their 



THE NEW CONSTITUTION OF K E N T U C IC Y . 383 

giving. From the liiglicst to the lowest, we luive no ulHccrs 
but of their providing. Freedom of suffrage no longer exists 
but in name. We are, all of us, the irreclaimable doomed 
serfs of one or the other of these parties. AVe must vote ac- 
cording to the dictation of their corruptly appointed and cor- 
ruptly constituted caucuses, or we have no vote. We have not 
even the poor comfort of throwing away our votes on some 
adventurous candidate wdio is the nominee of neither party. 
Such efforts have so frequently and uniformly proved abortive, 
that we no longer have any such candidate. Sw'orn allegiance 
and blind obedience to party, are the indispensable pre-requis- 
ites to any candidate for any office. Such is the fact now, 
when full four-fifths of the patronage of our State Government 
is so locked up that it cannot be got at directly through the 
elections. AVhen these four-fifths are thrown into the arena, 
we add that much more to the motive for party combinations 
— w^e add that much more to their means of corruption, and 
of course to their power of enforcing blind obedience to their 
vile mandates. To adopt this scheme is, at once and forever, 
to throw the whole powders of government into their hands. 
Once gone, the people can never reclaim them. A majority 
of the people will constitute the dominant party, and a domi- 
nant party was never knowm to relax its hold of powder or the 
means of corruption. 

The political men who have fashioned this scheme are cheer- 
ing themselves with the flattering hope that it is to prove an 
easement to their private purses, and that they are to pay their 
way to political preferment with the public spoils. But not 
so. God, in his organization of the human fiimily, has pro- 
vided that such motives shall not escape a retributive jus- 
tice. Instead of using their money, as heretofore, in buying 
votes at the polls, they will have to spend it, and more of 
it, too, in buying votes for delegates to party conventions, or 
in buying the delegates themselves. Men wall become dele- 
gates for the purpose of selling themselves to aspirants. There 
will be in their own party as active a competition for the nomi- 
nation, and one full as difiicult to manage, as the pretensions 
of the opposite party. It will be a saving of expense to no 
one. The price of nothing increases more certainly and rapidly 



384 THE NEW CONSTITUTION OF KENTUCKY. 

by the frequency and enlargement of tlie use tlian that of 
bribery. In England, where it has been in use for a century, 
in despite the severest penal laws, the expenses have become 
enormous. The known expenses of a single election in Liver- 
pool were eighty thousand pounds sterling, or ^400,000. The 
regular expense of an election to the two parties in the city 
of New York is never less than |100,000. The late election 
in Louisville of delegates to the Convention is said to have 
cost the candidates and their friends not less than $10,000. 
The tax paid to carry on elections will soon be the heaviest 
burden to property-holders in carrying on our State Govern- 
ment. They "v^'ill not permit themselves to be ruled by dema- 
gogues without an effort to prevent it. Men will make a prac- 
tical state of things out of every situation in which they are 
placed. To obtain a participation in the Government, they 
will have to submit to a voluntary taxation for the purpose of 
briber3\ The practice will become so common that there will 
cease to be any of that tittle of concealment and shame about 
it which is still left. In England, comfortable livers, well-do- 
ing mechanics, men who stand fair and are trusted in their 
business, church-going men of good standing among their 
neighbors, openly and unblushingly sell their votes. So it will 
be with us. There they have the balance-wheels of the throne 
and the peerage to correct the excesses of popular corruption. 
"We have no such conservative principle. When you corrupt 
the stream at its source, it must continue corrupt throughout 
its ramifications. The Government must become one mass of 
corruption in all its departments. A republic has no safe 
basis but that of an uncorrupt and incorruptible people. 

Governeur Morris, one of the shrewdest and most talented 
men this country has ever produced, said, forty years ago, that 
time would prove that the democracy had been guilty of a 
short-sighted policy in adopting the system of universal suf- 
frage. That under that system, whenever the population be- 
came dense, and the poor outnumbered the property-holders, 
the heaviest purse must always carry the elections. We al- 
ready begin to see the sagacity of the remark and the probable 
fulfilment of his prediction. The aristocracy of England so 
understood the matter, or they would not have agreed to the 



THE NEW CONSTITUTION OF KENTUCKY. 385 

recent reduction in the property qualification of voters. Tlio 
reduction they view as enlarging the field of hribery, and so 
increasing the influence of property. In order that they may 
not be cheated in their bribery, they have steadily refused the 
vote by ballot. Have our politicians been influenced by a simi- 
lar motive in refusing the vote by ballot to the people of Ken- 
tucky under their new Constitution ? 

Party caucuses and party conventions are to become tlic sole 
appointing power in our State. Every officer will virtually owe 
his office to their appointment. Without their nomination, no 
man can or will be elected. This is almost literally true, as to 
all elective offices, even now. These party caucuses and con- 
ventions will be composed of, or created by the very dregs and 
ofF-scourings of party — political hacks, men who make a trade 
of managing elections and live by it, seekers after the crumbs 
of patronage, election-bullies, and drunken grog-shop politi- 
cians. The mass of the voters of neither party will have any 
controlling say in their creation, or the exercise of their powers. 
Sober, industrious men of property, who stay at home and 
mind their own business, and who pay by taxes nearly all the 
expenses of the Government, will be virtually excluded from 
all influence in its administration, because they will not mingle 
in the polluted orgies, where these caucuses and conventions 
are manufactured. All this was well known by the practical 
politicians who filled the Convention. Why, then, when they 
were thus throwing all the patronage and practical powers of 
the Government into the hands of these conventions, was not 
some provision made for having them created and conducted 
upon some fixed principles of fairness and justice? As they 
are to become the great controlling, almost despotic power of 
the State, surely nothing could be more worthy of the serious 
consideration of the Convention than the devising some plan 
for controlling, upon just principles, the mode of their creation 
and the exercise of their powers. If it be answered that no 
such mode can be devised, then why so frame the Government 
as that its unavoidable practical action will be to throw the 
whole of its patronage and most of its power into such corrupt 
and irresponsible hands? Why extend the mischief beyond 
what any considerable portion of the people had desired, by 
49 



386 THE NEAV CONSTITUTION OF KENTUCKY. 

throwing all tlie offices, big and little, without any discrimina- 
tion, into the ballot-box ? All officers for the State at large, 
and whose duties do not pertain to some county or district 
business exclusively, must be elected by the votes of the peo- 
ple of the whole State. Even a librarian to a paltry State 
library, or a keeper of the State-house, must be so elected. 
'No considerable portion of the people demanded the election 
of even the Treasurer, Auditor, Register, or Attorney-general. 
Every man of sense and candor will admit that all such ap- 
pointments would have been better made, and should there- 
fore have been left with the Governor and Senate. To require 
one hundred and fifty thousand voters to determine who should 
be Register, or who fill the office of Attorney-general, with a 
salar}" of three hundred dollars, is to make a mere mockery of 
elections. Yet no doubt there was a motive for this. One mo- 
tive is quite obvious. It was necessar}^ to make these offices elec- 
tive, in order that there might be a batch of candidates, whom 
the party could tax to defray the election expenses of the Central 
State Committee. This indicates the most careful forecast and 
attention to all the minutioe of the wants of party. No rational 
motive, based on sound views of State policy, could have in- 
duced this foolish arrangement. No man believes that one- 
tenth of the voters of the whole State can be induced to take 
any interest in the question of who shall fill these minor offices, 
or even the more important offices of Auditor and Treasurer. 
Men best qualified to fill these offices seldom or never have a 
very extended reputation. They are but little known out of 
their respective counties. To say that they shall be elected by 
all the voters of the State is nominally giving their appoint- 
ment to the people, but actually giving it to somebody else ; 
for the mass of the people, full nine-tenths, never will take the 
trouble to obtain the information necessary to a selection. We 
all know who will have the making of these appointments — 
that they necessarily and unavoidably will belong exclusively 
to irresponsible party conventions. 

The Constitution of New York authorizes the Governor to 
suspend the powers of a tricky treasurer until the meeting of 
the next Legislature. Whilst freely copying so many bad 
things from that Constitution, why was not that salutarj^ pro- 



THE NEW CONSTITUTION OF KENTUCKY. 387 

vision also copied? It is not even required tliat the treasurer 
shall give sccuritj for the safe custody of the puhlic money, 
nor is the Legislature directed or permitted to require it to be 
done. The Legislature has power to regulate his duties in 
office, but it is doubtful, as he is elected by the people, Avhether 
it could prescribe a condition or qualification to his entering into 
office. But the better opinion is, that in analogy to what has 
heretofore been done under the old Constitution, such securit}' 
might be required from him, if unfortunately the Constitution 
did not expressly say that clerks, sheriffs, surveyors, coroners, 
constables, and jailors should give bond and securities before 
entering on the duties of their offices. Having thus carefully 
enumerated the officers from whom security shall be required, 
all construction is precluded which, from analogy and other- 
wise, would go to enable the Legislature to require security 
from the treasurer. The special enumeration of certain officers, 
from whom security shall be required, wholly precludes the 
'idea of its being required from any other officer named in the 
Constitution. This is the undoubted legal construction of the 
whole instiTiment. Negligence or ignorance must be the scape- 
goat for this want of security in the safe custody of the public 
treasure. It is true that it might prove a most convenient thing 
to a party to have free access to the treasury, through the 
instrumentality of an insolvent treasurer of their own appoint- 
ing, but so base a motive could with no propriety be imputed 
to any member of the Convention. Still, the danger to the 
State is just the same as if it had been actually intended. That 
such use shall not be made of the public money, we will not 
be indebted to the prudence and forecast of the Convention, 
but merely to the personal integrity of each treasurer. Should 
the treasury be robbed for that or an}- other purpose, and the 
State have no indemnity, it will afford but little consolation 
that it was the mere negligence of the Convention which pre- 
vented the State from obtaining proper indemnity. 

The Government will commence its career under bad aus- 
pices for the sanctity and security of the public treasure. That 
act of unparalleled impudence on the part of the members of 
the late Convention, in thrusting their hands into the treasury, 
and helping themselves to more than the people had allowed 



388 THE NEW CONSTITUTION OF KENTUCKY. 

them as pay for tlieir services, is of dark boding for the future. 
"When such an act can be pointed to as a precedent set by the 
founders of the Government, what may not be anticipated from 
the corrupt action of political parties ? K it could be conceded 
that they had the lawful power to take the money, still it could 
not be considered as a fair transaction between men in mere 
ordinary business. But when considered as a wilful violation 
of the highest and most sacred trust known among men, the 
fault becomes very grave. If they were not content with the 
compensation which the people had allowed, and meant to 
avail themselves of the supposed power to take more, every 
principle of fair dealing required that they should have ap- 
prised the people of their intention before their election. Did 
a solitary man of them do this ? Could any one of them have 
been elected if he had made such an avowal ? 

But when we recollect that they had no lawful power to take 
the mone}^ the transaction looms far above the region of mere 
effrontery — it becomes a usurpation, that highest crime against 
a republic. Some of their leaders, who arrogate for themselves 
such super-eminence of wisdom, had early in the session startled 
the community by madly proclaiming that they had power to 
do anything and everything not prohibited by the Federal Con- 
stitution, and consequentl}", that they held in the hollow of their 
hands the life and fortune of every citizen, all subject to their 
arbitrary will and caprice. Power to do anything and every- 
thing ! Why the very reverse of this detestable dogma is 
almost literally true. They had lawful power to do nothing, 
absolutely nothing, but that one single thing for which they were 
appointed — that is, to make a Constitution. Their whole 
power was derived from the old Constitution, and is embraced 
in the unambiguous words, wdiicli say that the delegates shall 
meet " for the purpose of readopting, amending, or changing 
this Constitution." That was their whole authority. They 
had none of that undefined and undefinable divine right which 
monarchists, a century ago, ascribed to their kings, and which 
a few would-be slaves in this country are willing to ascribe to a 
majority of the people, whilst in their natural state, before the 
institution of defined government. But whatever the slaves, 
or would-be slaves, of either hemisphere, may think of this long 



THE NEW C X S T I T U T I N OF KENTUCKY. 080 

exploded and now almost universally ridiculed dogma of the 
divine right, it can have no application to the powers of the 
Convention. Those powers are indisputably of human institu- 
tion alone, and derived exclusively from the old Constitution. 
The power to make a Constitution and the power to administer 
the Government are very distinct and difi'erent things, — tlie for- 
mer embracing no part of the latter in any shape, mode, or 
form whatever. The line of demarcation between the two is 
broad and distinct. There is no blending or unavoidable ming- 
ling. The distinction between them is and always has been 
acknowledged and well understood throughout the Union. Of 
the sixty or more conventions which have sat in the United 
States, not one of them has ever dared before to attempt to 
cross the boundary and usurp administrative power. 

Most of those conventions received no compensation what- 
ever for their services ; or if any, only such as the people gra- 
tuitously accorded to them after the Government got into opera- 
tion under the constitutions which the conventions made. The 
men of 1792, who framed our first Constitution, not only got 
no pay, but felt' themselves amply rewarded by the honor which 
so distinguished a trust conferred on them. The power to pay 
themselves, at their own discretion, out of the treasury, is 
therefore not at all a necessarily or implied power of the mem- 
bers of the Convention, but is contrary to the practice and 
understanding of the whole American people. No convention 
ever before attempted to pay its own members. 

To give even the figment of legal validity to their order on 
the treasury, it was clearly indispensable that they should have 
eno-rafted the order into the Constitution itself. As all the 
power they possessed was merely to make a Constitution, of 
course they could exert no power but through and by means 
of the Constitution. But that would have been a mere figment, 
which would have given the order no additional validity, unless, 
indeed, a ratification by the people might legalize it. Upon 
the same principle they might have helped themselves to ail 
the money in the treasury, or, if that was not enough, enriched 
themselves and their relations by the confiscation of individual 
property. Principles wliich lead to such consequences cannot 
be tolerated by freemen. Indeed, they received a most admi- 



390 THE NEW CONSTITUTION OF KENTUCKY. 

rable rebuke from a large majority of the Convention, in an 
amendment to the bill of rights, which declared that absolute, 
arbitrary power exists nowhere in a republic — not even in the 
largest majority of the people themselves. Of course no such 
power can attach itself by mere inference to any delegates of 
the people for the performance of a specified defined duty. 
The bill of rights did not need this amendment — the principle 
was there before ; but those apostles of absolutism needed and 
deserved the rebuke. The pretension having been made, it 
was right to crush it at once and forever. 

So the act of the Convention, in unlawfully abstracting this 
money from the treasury, needs- and deserves from the Legis- 
lature the most solemn rebuke. Two or three thousand dollars 
may be a trifling matter to the State, but the principle upon 
which it was abstracted from the treasury is of incalculable 
importance. As an unchallenged precedent it might work 
infinite mischief hereafter. It is a question far above mere 
party ties, or the obligations of personal friendship toward the 
members of the Convention. Suits should be ordered for the 
recovery back of the money. There is not room for a fair legal 
doubt that the money can be had. 

iTo.n. 

ELECTIVE JUDICIARY. 

It will be impossible, even in a brief manner, to go into any 
discussion of the importance of a stable and independent ju- 
diciary ; but it may not be amiss, before portraying what our 
judiciary are to become under the new Constitution, to refresh 
the memory of the reader by a few short quotations from what 
some of the wise men of England and this country have said 
on that subject: 

"Men engage to establish political society in order to ad- 
minister justice, without which there can be no peace among 
them, nor safety, nor mutual intercourse. We are, therefore, 
to look upon all the vast apparatus of our Government as hav- 
ing ultimately no other object or purpose but the distribution 
of justice, or, in other words, the support of the twelve judges. 
King and Parliament, fleets and armies, officers of the court 



THE NEW CONSTITUTION OF KENTUCKY. 301 

and revenue, ambassadors, niinisters, and privy counsellors, 
are all subordinate in their end to this part of administration. 
Even the clergy, as tlieir duty leads them to inculcate morality, 
may justly be thought, as far as regards this world, to liavo no 
higher object of their institution." — Hume. 

" Personal security and private property rest entirely upon 
the wisdom, the stability, and integrity of the courts of justice. 
In monarchical governments the independence of the judiciary 
is essential to guard the rights of the subject from the injustice 
of the crown ; but in republics it is equally salutary in protect- 
ing the constitution and laws from the encroachments and the 
tyranny of faction." — Kent. 

" Whatever may be supreme in a State, the judicial authority 
should be so constituted, as much as possible, as not only not 
to depend upon it, but in some sort to balance it. The State 
ought to give security to its justice against its power. It ought 
to make its judicature, as it were, something exterior to the 
State." — Burke. 

"The manner in which this is to be accomplished must 
mainly depend upon the mode of appointment and the tenure 
of the office of the judges." — Story. 

" The standard of good behavior for the continuance in office 
of the judicial magistracy is certainly one of the most valu- 
able of the modern improvements in the practice of govern- 
ment. In a monarchy it is an excellent barrier to the despot- 
ism of the prince. In a republic it is a no less excellent bar- 
rier to the encroachments and oppressions of the representa- 
tive body. It is the best expedient which can be devised to 
secure a steady, upright, and impartial administration of the 
laws. 

" Liberty can have nothing to fear from the judiciary alone, 
but would have everything to fear from its union with either 
of the other departments. As from the natural feebleness of 
the judiciary, it is in continual jeopardy of being overpowered, 
awed, or influenced by its co-ordinate branches, and as nothing 
can contribute so much to its firmness and independence as 
permanency in office, this quality may therefore be justly re- 
garded as an indispensable ingredient in its Constitution, and, 



392 THE NEW CONSTITUTION OF KENTUCKY. 

in a great measure, as the citadel of the public justice and 
public security." — Madison. 

It was from a confident belief in the wisdom of such opinions 
as these that the members of our conventions of 1792 and 
1799, and the members of some sixty other conventions held 
in the diiFereut States to establish or revise their Constitutions, 
gave" a life tenure to the judicial of&ce. This was not done at 
all for the sake of the individual men who might chance to be 
the incumbents, but entirely and exclusively for the sake of 
the institution itself. It was well known that incompetent 
men, and even bad men, might be appointed to office — that 
such a hazard was incident to every mode of appointment ; 
but still it was thought much better to risk the evils of an oc- 
casional bad appointment than to shake the independence of 
the whole department by having the judges appointed for only 
a term of years. Besides, it was thought that in an economi- 
cal Government like ours, where none but low salaries would 
be offered, it would add to the inducement to competent men 
to quit their business and accept the office if it were made 
permanent. Short terms and the privilege of reappointment 
would not do, because it was believed that would render a 
judge subservient to the appointing power, and because it 
would give too much power to the Governor. Besides, the 
frequent recurrence of such patronage in his hands would ren- 
der the judicial offices the objects of contention between po- 
litical parties. The permanency of the tenure would render 
the occurrence of vacancies so infrequent and uncertain as to 
prevent such contentions ; and if the Governor should be in- 
fluenced by party considerations in filling the few vacancies 
that might happen in his term, still the permanency of the 
term would be a sure inducement to the judge to obey the 
promptings of liis own pride of character, and cast himself free 
from the trammels of all party ties. Thus far this anticipation 
has been almost universally fulfilled throughout the United 
States. The judges have forgotten their party ties and obliga- 
tions as soon as they become seated on the bench, and, whilst 
the other departments of the National and State Governments 
have been badly corrupted by party action, its maligu influence 
has nowhere soiled the judiciary. 



THE NEW CONSTITUTION OF KENTUCKY. 393 

The action of tlie late Convention speaks loudly in holiiilf 
of tlie Kentucky judiciary in this regard. "Whilst stripping 
the Governor of nearly all power, and curtailing that of the 
Legislature in many particulars, in some perhaps iujuricjusly, 
they have taken away none of the vast powers of the judiciary, 
nor thought it necessary to place any additional guards for in- 
suring their proper exercise. This is the highest possible 
tribute to the pure and safe working of the old system, and an 
ample acquittal to the judiciary of Kentucky from having, in 
any important degree, abused their power. No sj-stem could 
possibly earn for itself a higher encomium. Is it not near akin 
to sheer madness at once to cast aside the whole of such a well- 
doing sj'stem, and recklessly plunge the State into the career 
of an untried experiment ? 

If the old system needed any further illustration of its ex- 
cellence, beyond the successful trial made in all the States of 
this Union, it can be found in the judiciary system of England. 
For a century she has had a body of judicial magistrac}', which, 
for eminent qualification, fidelity, and purity, cannot be paral- 
leled in the history of any other country, not even our own. 
At least we have not yet equalled them in qualification. By 
reason of this, her citizens have the enjoyment of all the sub- 
stantial benefits of practical freedom, under an hereditary 
throne and peerage, and despite the constant agitations kept 
up by corrupt political factions. 

"Why put the whole of such a system at once to hazard upon 
an untried experiment, under a Constitution, too, which its 
authors, in their self-sufficiency, have taken care to make the 
most difficult to be reached of any in the Union ? They could 
have suffered the appellate judges to have been appointed as 
heretofore, during good behavior, and elected the inferior 
judges for a term of years, or have suffered the mode of ap- 
pointment and tenure of the latter to remain, whilst the appel- 
late judges were elected for a term. Either plan would have 
enabled us to experiment with a part whilst the rest remained 
out of danger, until experience had tested the efficacy of the 
new scheme, and justified us in bringing the whole under its 
influence. Or the people would have been avcII content, if the 
Convention, from motives of prudence, had made only two of 
50 



394 THE NEW CONSTITUTIOX OF KENTUCKY. 

the appellate judges elective, leaving tlie otlier two to be ap- 
pointed by tlie Governor and Senate. There are various other 
modes by which the new experiment could have been put to 
the test of practical experience, without periling the whole 
system, l^ot to have used some such caution, bespeaks noth- 
ing but the arrogance of self-conceit in the all-sufficiency of 
the wisdom of the Convention. If all the judges were to be 
elected, and for a term of years, there was still nothing in 
public sentiment, or the pledges of the members, which required 
that the judges should be re-eligible. That is the worst feature 
of the whole plan. We might well have been spared all the 
evils of at least that much of the experiment. 

Thus far a discussion of the relative merits of the old and 
new plan for electing judges, if they have had serious discus- 
cussion anywhere, has been confined mainly to the question of 
the competency of the people to make proper selections, or of 
their superior competency to the Governor and Senate. But that 
is neither the whole question, nor the true question. Are the 
people actually or only nominally to have the election of the 
judges ? That is a preliminary question, which, if decided on 
the latter alternative, ought to settle the whole controversy ; 
whereas, if decided the other way, the main question is only 
then opened up for fair discussion. If it could be shown that 
the judges are to be elected with an exclusive eye to the rela- 
tive personal pretensions of the candidates, and that the people 
were to make their choice between them, after an honest, can- 
did interchange of information and opinion between neighbor 
and neighbor, without any extraneous bias from ordinary elec- 
tioneering tricks, and without the influence of any party obliga- 
tions, then there might be ample room for much honest differ- 
ence of opinion as to a preference between the two plans. But 
unfortunately this cannot be shown. This is not the manner, 
nor these the circumstances, under which the people will decide 
an election. They will actually have but very little hand in 
the election. The power of appointment will be taken out of 
their hands, and usurped into those of a self-appointed set of 
agents called party conventions. These will make their nomi- 
nations exclusively, because the nominee is either a Wliig or 
Democrat ; and the people, or nearly all those who vote, will 



THE NEW CONSTITUTION OF K E N T U C K Y. 30o 

cast tlieir suiFrage, because the voter is for or against a tarift* 
for or against a sub-treasur}-, or on account of his views con- 
cerning some such point of diftereuce between tlie two great 
political parties. 

This is no speculation, no mere matter of conjecture. Un- 
fortunately we foreknow its truth as certainly as if the thing 
had already happened. How is it with regard to all the elective 
offices now within the gift of the people, — are they not all tilled 
in that w^ay? With this personal knowledge and experience 
of every man, is it possible that the great mass of the people 
have been gulled into the belief that they were really to have 
the appointment of the judges, and that an election of judges 
was to constitute an exception to all other elections ? There is 
not the slightest ground for even hoping that their election will 
constitute any such exception ; on the contrary-, there is every 
reason for knowing that it will not. Patronage or power never 
yet came within the reach of any political party that it was not 
seized and used. But there are peculiar circumstances attend- 
ing our situation which must put this matter beyond a doubt. 
The Democratic leaders have gone into this reform movement, 
if not exclusively w^ith the view and hope of obtaining thereby 
a party ascendancy, yet so at least the Whig leaders believe, 
and are fully determined to balk them in the elibrt. Promi- 
nent Democrats have taken no care to disguise their belief that 
the movement will have the eifect of throwing a majority of 
the offices into the hands of Democrats. This the AVhigs also 
greatly fear. Now, w^hether it be a law of all minorities, or 
only something peculiar to the Democratic party of Kentucky, 
it is very little liable to split, and its whole force can be brought 
out and combined for any purpose desired by their leaders, 
without the public demonstration of those efforts at organiza- 
tion which seem to be so indispensable to Whigs. This the 
latter well know, and therefore will not trust to any seeming 
quiet on the part of Democrats, nor to any of their professions 
or protestations that party ought not to be mingled in the elec- 
tions, especially where these are made in Whig counties and 
districts. The Whigs will not soon forget that it was by the 
ciy of " no party " the Democrats obtained a majority in the Con- 
vention. Whig organization to secure the safety of the party 



396 THE NEAV CONSTITUTION OF KENTUCKY. 

will be a sort of law of necessity, carrying with it, as a matter 
of course, Democratic organization, even if we had reason for 
supposing these two parties at all exempt from that thirst for 
power which is natural to every political party. 

The inevitable consequence is, that party Conventions will 
become the sole appointing power in the State, and they will 
virtually appoint all our judges, together with all the ministe- 
rial officers, clerks, sheriffs, and even down to constables. The 
sole power of the people, a majority always acting with one or 
the other party, will be the mere power of ratification. They 
will not have the power of the Senate over the nominations of 
the Governor; for, by rejecting his nominations, the Senate can 
compel him to nominate other persons. But this the people 
cannot do ; for, by rejecting the candidate nominated by their 
own party, they infallibly elect the candidate of the opposing 
party, who will have received his nomination from an equally 
corrupt source. This of course cannot be thought of, and we 
shall, all of us, have to lend our aid in electing the nominee of 
the one or the other party, or we shall have no vote at all. 
Whenever the means or power can be devised for putting down 
all parties, and relieving the nation from the shackles of the 
two great parties that now hold us in thraldom, we may expect 
the people to effect their emancipation from this state of things, 
and become the appointers of their judges by means of elec- 
tions. 

Even if party conventions were not to become the appoint- 
ing power, the matter would be but little improved, for the 
candidates for judgeships, like all other candidates, would resort 
to stump-speaking and the usual arts of corrupt electioneering. 
This is the course the thing has taken in Mississippi. From 
the great preponderance of the Democratic party in that State, 
it has felt no need for grasping the judgeships as part of the 
party patronage ; and from the influence of the members of the 
bar, who are personally interested in having the bench well 
filled, the Whigs have been allowed a full share of the judge- 
ships. The several candidates are mainly left to their election- 
eering talents. But here, the majority not being so decisive, 
the dominant party can dispense with none of its power of 
patronage, and the example of IS'ew York is the one we are 



THE N E W CONSTITUTION V K E N T U C K Y. 39Y 

most likely to follow, — that is, all judicial and otlicr appoint- 
ments will flow directly from party conventions. It matters 
uot what promises and assurances political leaders may have 
given, or may give, to -the people on this suhject; tliey cannot 
be fuller or stronger than those given by similar men to the 
people of New York, Yet, notwithstanding those promises, 
there has been no judge elected in that State, since the adop- 
tion of their new Constitution, but as the nominee of a party 
convention. Nor can there be a spectacle more humiliating 
to a republic than the one there presented, of four hundred 
thousand freemen casting their votes between two candidates 
for a supreme judgeship, on the sole ground of their allegiance 
to the corrupt factions of that State. "We need not therefore 
stop to trace the probable consequences of our judges having 
to electioneer for their offices and for their re-election, nor specu- 
late upon the question whether, by becoming a judge a man 
will so far change his nature as not to use the powers of his 
office to pay his election debts, whether of favor or hate, and 
to promote his re-election. 

Continuing our inquiry to the more probable event, that our 
judges will all owe their appointments to party conventions, 
and will have to look to the same source for their re-election, 
must they not sooner or later become mere party tools ? Several 
prominent men of the Democratic party in our State do believe, 
or pretend to believe, that they have felt the influence of party 
feeling against them in the decisions of our appellate court. 
If they do actually believe this of a court appointed as that 
was, and so far removed from party influence, how can they 
possibly doubt that motive and feeling will operate upon judges 
who shall receive their appointments directly from party con- 
ventions, and who will have to look to such conventions for 
their re-election ? For a time this may not be directly required 
from them as a duty to party. The two parties ought to live 
thrivingly for many years upon the abundant patronage they 
have provided for themselves under the new Constitution. 
But those means are not inexhaustible. With increase of 
population and increase in the price and sphere of bribciy, 
exhaustion of the fund must ultimately ensue; and tlion the 
great law of necessity, party supremacy, will compel them to 



398 THE XEW CONSTITUTION OF KENTUCKY. 

resort to other means. Tliey will not he slow to discover tliat 
tlie powers of the judiciary are a great storehouse of inexhaus- 
tible means, nor will they fail to use them. 

Before the dissolution of the Roman Republic, its judicial 
officers, elected by the people, had become thoroughly corrupt. 
They not only sold their decisions for money, but rendered 
them in aid of the factions who elected them. This corrup- 
tion, we are told, tended greatly to alienate the aftections of 
the people from their Government, and to facilitate its over- 
throw. 

It must be so everywhere. For what people can tolerate a 
Government whose civil and criminal justice is corruptly dis- 
pensed ? The obtaining of justice being the very purpose of 
men in instituting political society, whenever it ceases to flow 
from their Government, when the rights of life, liberty, and 
property are no longer secure, anarchy ensues, and, as a relief 
from that, despotism becomes an actual boon. 

It might be, as before stated, a question well worthy of much 
honest difference of opinion, whether the old or new plan of 
appointing judges were most likely to secure us good appoint- 
ments, provided the people were actually to have the choosing 
of their judges, without any sinister bias or influence. Thus 
far experience has proved that both modes of appointment are 
liable to abuse. There can be no doubt, to say the least, that 
the judicial appointments made by our Governors will fully 
bear a just comparison with the elections made by the people 
of either members of the Legislature or members of Congress. 
But this is not a proper mode of comparison. The test lies 
not there. The question is whether self-appointed, irresponsi- 
ble party conventions are likely to make better appointments 
than would be made by our Governors under the supervision 
and control of the Senate. That is the true question. Let 
every man then put it to himself whether, if his whole fortune 
were involved in a lawsuit, and he had confidence in the law 
and justice of his case, he would prefer it should be decided 
by some unknown man, to be appointed by the Governor and 
Senate, or by a man to be appointed by one of these party con- 
ventions. No man of sense and experience in the affairs of 
the world would hesitate in his choice. "Well, what would be 



THE NEW CONSTITUTION OF KENTUCKY, 309 

tlie clioico of each man of good sense for himself ought to be 
the choice for the whole State. That which would be the best 
mode of appointment for each one separately must ha the best 
for the whole of us collectively. 

Conceding that the members of the Convention were under 
a necessity, from their pledges, or for the purpose of carrying 
out the supposed wishes of a majority of the people, to make 
all the judges elective for a term of years, still they were under 
no such necessity to sutler the judges to be re-eligible. What- 
ever maybe the objections to barely electing the judges, those 
objections are as nothing when compared to the evils incident 
to an elective system which permits them to be re-elected. 
Whether the judges have to depend upon their own personal 
popularity and powers of electioneering, or will have to look 
to party conventions for their election and re-election, this ob- 
jection applies with equal force. If there be a fault in the 
Federal Constitution which experience has thoroughly ex- 
posed, and one which a majority of the people would heartily 
concur in amending, it is the re-eligibility of the President. 
One of the great political parties has attempted to nullify this 
evil in practice, by regularly, for years back, making it a part 
of their published creed, that no man shall be elected President 
for two terms in succession. Most of the State Constitutions 
forbid the election of the same man as Governor for two terms 
in succession. This feature of our old Constitution the Con- 
vention has retained in the new, even after they had stripped 
the Governor of all his patronage, and consequently after there 
ceased to be any substantial reason for keeping up the restric- 
tion. They have also said that sheriiFs shall be re-eligible for 
only one term of two years, whilst the judges are to be re-eli- 
gible for any number of terms. 

The reason for these provisions in our own and other Con- 
stitutions against the re-eligibility of certain officers needs no 
explanation or vindication. Every one knows that they pro- 
ceed from a well-founded distrust of human integrit}', and 
from an almost universal belief that most men, when they 
have in their hands the public patronage or power, whicli can 
be used to promote their re-election, will use it for that pur- 
pose. Poor human nature is wholly unwortln' of a trust which 



400 THE NEW CONSTITUTION OF KENTUCKY. 

implies that power will not be abused in that way. Each of 
us, upon self-examination, Avill find the number of persons few, 
indeed, to whom we would be willing to trust the powers of a 
judge, with perfect confidence that he would not use those 
powers to promote his re-election. Most of us will have to 
come to the conclusion, after a close scrutiny, that we know 
not a single man in whom we could place such confidence ; or, 
at least, those among us who know the perfect facility with 
which a judge can bestow judicial favors, and covertly exercise 
favoritism without the fear of exposure. Indeed, no perfectly 
honest man would be willing to trust even himself in such a 
situation. He would rather avoid the danger and pray the 
Lord to deliver him from such temptation. In fact, the liability 
to the imputation will, with sensitive men, constitute an objec- 
tion to seeking the of&ce. Men of worth, who hate all strife 
and contention, have been willing to serve the State, for mod- 
erate salaries, as judges, because it was the only public station 
they could attain without a blackballing of their private char- 
acter, and the only one in which their actions will not be per- 
verted with all the malignity of party hate and electioneering 
rivalry. There is danger that some of these men might decline 
to seek the ofiice under any mode of tenure, through the ordeal 
of a popular election. This danger must be increased when 
they know that the fact of their re-eligibility places their repu- 
tation at the mercy of malignant sneers and imputations. Bad 
men are callous to such things, and do not fear them. 

Another reason against this part of the scheme is, that it is 
likely to prove of little benefit to good men, whilst bad men 
may profit by it. The bench, when worthily filled, is a poor 
place to acquire personal popularity. It will seldom be ac- 
quired or preserved by a man who honestly and firmly dis- 
charges his duty. Those who are benefited by honest judicial 
decisions return no thanks to the judge, because, as they right- 
fully conceive, they receive nothing more than they are prop- 
erly entitled to. • But even the best of us, when we feel what 
we deem to be injustice toward us, cannot avoid a sort of re- 
sentment against the judge through whom the injuiy is in- 
flicted. On the other hand, the knave must be a fool who 
cannot so use judicial power as to promote his re-election. 



THE NEW CONSTITUTION OF KENTUCKY. 401 

And, surely there can be nothing more abhorrent to a virtuous 
and intelligent mind than that bad men nhould not merely 
have the power, but be thus tempted, so to prostitute the civil 
and criminal justice of the country. 

This worst, most abominable feature of the whole scheme 
is of their own voluntary contriving, on the part of the mem- 
bers of the Convention. There was no known or even prob- 
able public sentiment urging its adoption. On the contrar}-, 
rotation in othce is a principle of known popularity in this 
country, and especially so with the Democracy. "Wliilst popu- 
lar favor was so sedulously propitiated in every other way, 
wh}' was it not attended to in this particular also ? There 
were at least forty la\\^^ers in the Convention ; and we have it 
on the authority of its most prominent leader, that not less 
than twenty of them would be candidates for the judgeships 
about to be vacated. In the estimation of these gentlemen 
candidates, and even of the whole legal corps, the offices 
might well be considered as more valuable if incumbents were 
allowed to be re-elected. Their influence, of course, would 
be a preponderating one in the Convention on any such sub- 
ject, especially if there was no one there to expose the fact 
that their interest might be one way, whilst that of all the 
other people in the State was different. This is one mode of 
answering the question. 

There is another. It might well occur to shrewd politicians 
that, under a system of ineligibility, the judge would have no 
motive for retaining his party ties ; that he might, for the sake 
of personal independence and self-respect, forget his obliga- 
tions to the party that made him, and thus become too inde- 
pendent, as it was once complained that the judges in Ken- 
tucky were. But make him re-eligible, and he can never 
forget the power that made him, because he must always keep 
it in view as the power upon whieh he must rely in obtaining 
a re-election. Having wilfully and Icnowingly cast the whole 
judicial power of the State into the grasp of party, the mem- 
bers of the Convention cannot complain of uncharitableuess 
in a supposition which imputes to them ordinary wisdom and 
forecast in so modelling the scheme of an elective judiciary as 
to render it a source of efficient party strength. 
51 



402 THE NEW CONSTITUTION OF KENTUCKY. 

It "was pretended to be necessary to make judges re-eligible, 
in order to induce competent men to seek the office. But 
tills, if not a mere pretext, was a most shallow reason. In 
view of the doubts and difficulties of being re-elected, there 
is no man who would not gladly surrender that chance, and 
content himself with a single term, for the sake of not more 
than $200 addition to his annual salary. At the cost of only 
some $3000 annually to the State that difficulty could have 
been easily removed. And would it not have been money 
well spent ? Could we not have well affi3rded to pay a much 
larger sum to save us from so pernicious a scheme ? 

ijnder the Constitution of 1792, sheriffs were eligible for a 
single term only. The new Constitution makes them eligible 
for two terms, but for two terms only. Why this arrange- 
ment ? Common prudence and obedience to the principle of 
rotation would not permit them to be made re-eligible indefi- 
nitely, but, if restricted to a single term, they would not have 
sufficient motive for being party sheriffs, and the party that 
elected them might get no service out of them. Eender them 
eligible for a second term, then they would have the motive, 
and the party might rely on having in them most efficient ser- 
vants for two years out of every four. 

No. in. 

PROMOTING POLITICAL PARTIES. 

Government generally acts through its legislative and exec- 
utive departments, on a large scale, affecting society only in 
the mass, and seldom reaching the single private citizen in 
any direct manner. Its action through the judiciary, on the 
contrary, seldom operates on the mass, but comes in detail on 
each individual separately, and affecting him in his most im- 
portant personal interests. The State is a stout subject, which 
can endure much maltreatment from empirics, and long bide 
the buffetings of corrupt factions without much permanent 
injury. Great corruption, even in the legislative and execu- 
tive departments, may be long safely borne, and will be quietly 
endured, whilst the public justice remains pure. But men 
cannot endure the deprivation or corruption of justice — that 



THE X E W C N S T I T r T I X OF K E X T C C K Y. 403 

tonclies every man to the quick through his clearest personal 
interest. Every man has to look to the judiciary for the re- 
dress of his private wrongs, the maintenance of liis private 
personal rights, and for the security of his property. Hence, 
the proper structure of that department is of such dccj) per- 
sonal concern to every man. 

The perfect protection to life, liberty, and property aft'orded 
by the stable independent judiciary of England keeps the 
people of that country content with, and even proud of their 
Government, whilst lal)()ring under a load of taxation such as 
no other people overbore, and whilst in political matters en- 
joying only a very limited approach to civil liberty. It was 
by permitting the stream of public justice to run pure in civil 
matters, that those usurpers, Cromwell and Bonaparte, kept 
the mass of their respective nations content with their mili- 
tary despotisms. The English boast that they have nearly 
realized the beautiful idea of Burke, that the justice of a State 
should be a thing apart and out of the reach of its power — 
that the supreme power, as represented through the House of 
Commons, never controls or even attempts to interfere with 
the independent action of the judiciary, but sufiers the judges 
to move undisturbed in a distinct, separate orbit of their own 
— that the party strifes and the popular heat and violence, 
which necessarily influence the action of the House of Com- 
mons, never influence, because they have no direct power 
over the judiciary. 

Our Federal and State Governments have been constructed 
with a view to a still nearer approach to that ideal. The per- 
manent tenure of office has given our judges the same inde- 
pendence, and the guarantees of our written Constitutions 
have placed them still further from the immediate reach of the 
majority or governing power. We have flattered ourselves, 
that, whilst enjoying a so much larger political liberty, we 
were deriving equal benefit from a pure administration of jus- 
tice. We believed that we were successfully proving, by our 
exam})lc, that the two could be safel}' combined in a represen- 
tative republic ; that constitutional written guards were real 
substantial restraints on the powers of Government ; and thus 
also proving the pre-eminent excellence of our Government 



404 THE NEW CONSTITUTION OF KENTUCKY. 

over tliat of England, with its unwritten Constitution and om- 
nipotent Parliament. They depend for the preservation of 
their liberty on the checks and balances naturally existing be- 
tween a House of Commons on the one side, and an hereditary 
throne and peerage on the other. We have attempted, by our 
written Constitutions, to give much better security to liberty 
by denying omnipotence to Government, and by expressly 
excepting from its powers all that was deemed essential to 
liberty. It was our fond belief and proud boast that, by these 
constitutional restraints, we had secured the enjoyment of per- 
fect liberty ; that, with the right of universal suflrage, oppres- 
sion or wrong to the majority was physically impossible, whilst, 
with the aid of an independent judiciary, and the trial by jury, 
these constitutional guards would afford ample protection to 
individual citizens and minorities against the unjust aggres- 
sions of the majority. 

We can no longer make this proud boast. Our modern wise 
men, unmindful of this theory, and heedless of the necessity 
for keeping the justice of the State apart from its supreme 
power, have brought them into direct contact, and placed the 
judiciary as much under the immediate influence of the ma- 
jority as the Legislature and Executive. They have done 
worse. For, according to the practical working of all popular 
elections, they have brought the judiciary under the direct 
control of party. 

If any man doubts this, let him look at the Senate of the 
United States — a body composed of men not merely of ma- 
ture years, but in the decline of life ; men of talent, who, from 
their success in attaining such station, must be of more than 
ordinary firmness and energy of character ; men who occupy 
the dignified attitude of representatives of sovereign States ; 
men who hold their offices with adequate salaries during the 
long term of six years ; and men, too, who do not derive their 
offices from an immediate election by the people. Look at 
this body, so carefully constituted to ensure their indepen- 
dence, and say whether they are not all imbued with party 
spirit, yes, perfectly under the dominion of party. Mr. Cal- 
houn has appropriately characterized it as a Magdalen asylum, 
a mere receptacle of party prostitutes. None of the function- 



THE NEW CONSTITUTION OF K E N T T C K Y. 40o 

aries of Government, State or Federal, are more tlioroiiglily 
partisan ; none more blindly submissive to the mandates of 
party. 

We can expect nothing better from our judges, when elected 
for a term of years directly by the people, as the nominees of 
party conventions, and looking to them as the only means of 
obtaining a re-election. They must remain party men, and 
act on the bench as the mere representatives of party, in the 
same manner as all our Senators and Representatives. It 
would be idle to expect anything else. It would be hoping 
against all knowledge and experience to anticipate any other 
result. 

We have already had many examples to prove that even 
juries sutler party feeling to influence their verdicts. By- 
standers have been able to predict a hung jury, and even de- 
signate the vote of every juror, by the simple test of party 
politics. This is most abominable. But what corrective is it 
likely to have from a sympathizing party judge ? Bad will be 
the chance for impartial justice before such a judge to a poor 
man, who has only his own vote to give at an election, when 
contending with the wealthy head of a large and influential 
family connexion. Still less will be his chance, when contend- 
ing with some popular lawyer, who has the reputation of in- 
fl.uencing all the party operations of his county. 

Suppose that a dominant party, as they are most apt to do, 
have overstepped the barrier of the Constitution, and that the 
minority party is violently assailing them, in hope of pulling 
them down for this act of usurpation, will a party judiciary, ap- 
pointed by the dominant party, and looking to that party alone 
for reappointment, be apt to prove impartial arbiters of the 
controversy ? There is nothing we can foreknow more certainly 
than that such a judiciary will not lend its aid to the con- 
viction and prostration of its own party. Yet, the honest, im- 
partial discharge of that duty is what the theory of our Gov- 
ernment anticipates and indispensably requires. Without 
that, the Government ceases to be one of limited powers. We 
shall all have to live as we may under a Government, which, 
in its actual operation, will be nothing but the unrestrained 
will of a party majority. The people of England, with their 



406 THE NEW CONSTITUTION OF KENTUCKY. 

hereditary tlirone and peerage, will enjoy more than we of the 
substantial benefits of liberty. The enjoyment of liberty and 
property will be more secure there than here. 

^Yith a party Legislature, a party Governor, a party judi- 
ciary, and party sheriffs, ours must become a purely party Gov- 
ernment. Throughout all of its ramifications it must become 
thoroughly imbued with the spirit of party — that spirit which 
has the lust for power as its chief, if not the only incentive ; 
obedience to party as the chief, if not the only virtue ; and 
disobedience or desertion as the chief, if not the only crime in 
its moral code. 

Where then will be the great balance-wheel of Government 
— where th&t justice of the State, which, according to all sound 
theory, should serve as a counterpoise to its power ? All gone — 
gone into the great vortex of part^dsm. We shall have a limi- 
ted Government in form, but a despotism in reality. "We shall 
have the Government of an unrestrained majority, and the 
very worst form of that Government — a majority acting as a 
political party. The Constitution will still have limitations on 
power, the bill of rights will still proclaim the sanctity of life, 
liberty, and property, but where will be the men to enforce 
those limitations and guard those rights ? They were intended 
to secure private citizens and minorities against the unjust ag- 
gressions of majorities. But to make them anything more 
than mere dead letter precepts, there must be men to give 
them vitality — official power to resist those aggressions. Those 
men we shall not have. That power will be gone. Tlu justice 
of the State will have no representatives. All our officers, from 
the highest to the lowest, judges and all, will be the mere 
representatives of party. 

l^or is this any new lesson in the science of government 
which we have now for the first time to learn. Mr. Madison 
and other distinguished men of the Revolution, warned us 
long ago that limitations on legislative power, such as prohi- 
bitions against bills of attainder, ex post facto laws, laws infring- 
ing the right of conscience, right of trial by jury, freedom of 
the press, etc., " can be preserved in practice no other way than 
through the medium of an independent judiciary. Without 



THE NEW CONSTITUTION OF KENTUCKY. 407 

this, all the reservations of rights or privileges would amount 
to nothing." 

What security, for instance, will there be for religion ? There 
is no subject about which majorities are more prone to oj)pres3 
and persecute minorities than that of religion — none about 
which juries are so apt to catch and be influenced by the popu- 
lar feeling — none in Avliich their verdicts will more need the 
careful and resolute supervision of an independent judiciary. 
Can we rely upon a re-eligible elective judiciary to firmly dis- 
charge that important duty ? Let the facts of a recent occur- 
rence in a neighboring State, as detailed from his own knowl- 
edge, by a distinguished member of the late Convention, 
answer that question. 

Some sinister motive caused a Catholic priest, of amiable and 
irreproachable character, to be indicted for a rape. Prejudice 
against his religion had caused the community to prejudge 
him upon the faith of false and malignant rumor. Wlien the 
trial came on, it appeared that the priest was a feeble, small 
man, and the prosecutrix a stout, strong, German woman. 
The disparity of their strength was so obvious that it at once 
gave the lie to the whole story. Every unprejudiced mind was 
convinced that she was much more able to commit violence 
upon him than he upon her; yet the jury found him guilt}-. 
The verdict was received with shouts of applause by the crowd 
in and around the court-house ; and it was with difficulty that 
they could be restrained froin tearing him to pieces. An ap- 
plication was made for a new trial, on the ground that the tes- 
timony was clearly false, and obviously such as did not warrant 
a conviction. The judge confessed that he did not believe the 
man to be guilty, and said if he had been on the jury he would 
not have agreed to the vei'dict. But he chose to pretend that 
it was the exclusive province of the jury to determine the ques- 
tion ; and, as they had found him guilty, he would not grant a 
new trial. The man was accordingly condemned, and, though 
afterward pardoned by the Governor, will have to bear through 
life the opprobrium of a pardoned felon. Now this judge knew 
full well that there was no part of his duty of a more sacred 
character than that of shielding an innocent man from a ver- 
dict obtained through popular prejudice. lie knew full well 



408 THE NEW CONSTITUTION OF KENTUCKY. 

it was liis duty to grant a new trial ; but tte censorious said he 
was afraid to grant it, either because his re-election was about 
to come on before the Legislature, or because he was about to 
become a candidate for Congress. 

In close connection with this subject, public attention may 
be here called to an act of the late Convention, as illustrative 
of the heedlessness or recklessness with which they have done 
their work. There is no subject about which Americans have 
heretofore been more unanimously agreed than the sanctity of 
the right of trial by jury in criminal prosecutions. 'Ho con- 
vention ever before set in this Union that did not carefully 
exclude that subject from legislative discretion. All our Con- 
stitutions declare in substance that the right shall be held 
sacred and forever remain inviolate. If any of them authorize 
a modification, they define how far it shall extend. Of all the 
parts of the ancient mode of trial by jury, there is none of 
more importance to the accused, none more necessary to im- 
partial justice, and therefore none which should be held more 
sacred, than his right of challenge. K there was anything in 
the old Constitution deemed so peculiarly sacred as that the 
hand of innovation dare not touch it, this very right of chal- 
lenge would have been one of the things pointed out as of that 
sort of sanctity. Yet the late Convention has dared to touch 
it, and that too with a bold and heavy hand. 

Art. 2, Sect. 39. — "The General Assembly may pass laws au- 
thorizing appeals or writs of error in criminal or penal cases, 
and regidating the right of challenge of jurors therein." 

Art. 13, jSecf. 7. — " That the ancient mode of trial by jury shall 
be held sacred, and the right thereof remain inviolate, subject 
to such 7nodifieations as may he authorized by this Constitution." 

The first of these two sections, being the only one in the 
Constitution that authorizes any modification, must be what is 
indicated or referred to in the latter clause of the other section. 
The two sections construed together would leave no room for 
doubt, even if the published debates did not prove the fact, 
incredible as it may appear, that the Convention actually did 
intend to give the Legislature full power to regulate or modify^ — 
that is, to alter the right of challenge at its mere will and plea- 
sure. A proposition so to restrict the power as that not more 



THE NEW CONSTITUTION OF KENTUCKY. 409 

tliau one-fiftli as many peremptory challenges slionkl be given 
to tlie Commonwealth as might be allowed to the prisoner, 
was voted down by a large majority. This plenary discretion 
over the whole subject carries with it the power to take from 
the accused all challenge but for cause, and even to define and 
limit the challenge for cause. It also carries with it the power 
to give the Commonwealth any number of peremptory chal- 
lenges ; whilst all, or nearly all, ma}' be taken from the accused. 
All this discretion given, too, to a Legislature that the Con- 
vention would not trust with an unrestricted power to make 
a]3propriations of public money beyond the amount of one 
hundred dollars. 

It is not intended to impute anything so monstrous to a sin- 
gle member of the Convention, as to suppose he meant this 
discretionary power should be thus abused. But the absence 
of such intention in no degree palliates the mischief of the 
act. The evils that may ensue will be none the less grievous 
because the Convention did not foresee and know that they 
would occur. It w^as their business to have foreseen such 
things, and to have been very careful in guarding against their 
occurrence. That is a discretion which no other State has ever 
trusted to the Legislature. The people of Kentucky would 
be as little apt as those of any State knowingly to place such 
an amount of unnecessary confidence in any one. Our written 
Constitutions, with limitations of power, are all framed on the 
idea that men are naturally prone to abuse power ; that all po- 
litical parties are prone to hate and oppress each other ; in 
fine, that men can never be safely trusted with unrestrained 
power over their fellow men. Hence all the elaborately de- 
vised schemes of checks and balances, the eftbrt to obtain an 
independent judiciary, and last, not least, to secure the right 
of trial by an impartial jury. Hence also Government officers 
were not trusted with the exclusive selection of the impartial 
jury. To guard against the abuse of that power, the accused 
is allowed any number of challenges for cause and twenty to 
the favor, or without cause, — so cautious have wise men been 
against the abuse of power, and the oppressive action of ma- 
jorities. The jury, the impartial jury, was to be to the citizen 
52 



410 THE NEW CONSTITUTION OF KENTUCKY. 

a last refuge against the oppression of liis government. There 
was to be his certain reliance for sympathy and protection. 

These modern innovators, not content with giving us a party 
Legislature, a i^arty Executive, a party judiciary, and party 
sheriffs, have actually placed it in the power of a dominant 
party to deprive the citizen of even this his last refuge. De- 
prive him of his right of challenge, and you take from him 
even the pretence of a fair and impartial trial by jury. Elvers 
of blood flowed during the French Revolution, under party 
persecution, and from the instrumentality of sworn juries. Our 
citizens may become equally defenceless against similar perse- 
cution. Their appeal for protection against the oppression of 
a party Legislature will be to a party jury, packed by a party 
sheriff, and presided over by a party judge ; and, if they seek 
the clemency of the State, they will find the pardoning power 
in the hands of the very incarnation of all partyism, a party 
Governor. 

Yerily, verily, this is rare evidence of the march of human 
intellect, and of modern improvement in the science of gov- 
ernment. If our modest fathers could arise from the dead, 
how they would stand abashed at such a specimen of "all the 
wisdom of Kentucky." How they would admire the rapid 
improvement of their posterity, when seriously told that, such 
is the thraldom of party around us, there does not exist in 
modern Kentucky the power to prevent the adoption of such 
a Constitution ; that, from the immense amount of rewards it 
offers for support, it will infallibly bribe its own way into 
adoption. 

Men who, from self-suificiency, arrogantly presume the perfec- 
tion of their work, and take so much pains to perpetuate it, by 
making it hereafter of such difficult access to the people, ought 
to have been well convinced that they were perfectly incapable 
of committing so gross a blunder. 

Our courts had given different decisions as to the Common- 
wealth's right of challenge for cause, and, as the Legislature 
had no right to settle the question, it was very proper to de- 
fine the right in the Constitution, or even to have confided to 
the Legislature the power of defining it. And, in avoidance 
of frauds upon criminal trials, it would have been very well 



THE NEW CONSTITUTION OF KENTUCKY. 411 

to have given the Commonwealth as many as four or five per- 
emptory challenges. But never before did it enter the heads 
of sane men in this country to give the Legislature power to 
take from the accused his whole right of challenge, 

No. IV. 

THE EXECUTIVE. 

Xo part of the Government will suffer more than the execu- 
tive from the inconsiderate and ill-advised action of the Con- 
vention. Its great importance as a necessary part of every 
good government requires that the people should bestow a 
most heedful attention to the injury the Constitution will sus- 
tain in this department. 

The theory of the Government requires its powers not merely 
to be divided out between three distinct independent bodies 
of magistracy, but that they shall have such an amount of 
power as will enable each to act as a sort of check or counter- 
poise against the others. 

This theory is totally overlooked in the new Constitution. 
The Governor is stripped so bare of power that it would be no 
material change to abolish the office altogether. The Secre- 
tary of State is the only officer he is allowed to appoint. He 
has power to control or command not a single officer except in 
the militia, and to do even that in person, he inust wait the 
advice of the Legislature. 

He is nominally required "to see the laws executed." But 
how is he to do this when he will have no agency in the appoint- 
ment or power over those officers who will have the execution 
of the laws ? 

His veto power is a very small matter, and, practically, has 
been thus far of but little utility. That, together with his 
pardoning power and his power to fill vacancies, had just as 
well have been confided to a Speaker of the Senate, and the 
unnecessary duty of signing commissions would have been as 
well performed by the Secretary of State. The office, being 
stripped of all dignity, influence, and importance, must soon 
dwindle into contempt. 

It was a maxim among the founders of our Government that 



412 THE NEW CONSTITUTION OF KENTUCKY. 

" a feeble Executive implies a feeble execution of the 'Govern- 
ment; a feeble execution is but another phrase for a bad exe- 
cution; and a Government ill executed, whatever may be its 
theory, must be in practice a bad Government." 

Pursuant to this idea, so universally received among all wise 
speculators on the science of government, the old Constitution 
gave the Governor large and extensive power through his pat- 
ronage. It gave him the appointment of nearly all the officers 
whose offices were created by the Constitution, or might be 
created by law, with the exception of those whose jurisdiction 
was confined to a county. Ha^nng to see that the laws were 
executed, he was properly entrusted with the selection of the 
agents to assist in their execution. The dignity and import- 
ance of the office invited to it men of the first distinction for 
talents and character. The people had in their Governor an 
intelligent and faithful supervisor of all the aifairs of the State. 
His superior opportunity for information, the greater amount 
of attention which he bestowed upon the business of the State, 
together with his patronage and individual weight of character, 
gave great influence to his advice with the Legislature. A 
legislative body can never do more than carve out work and 
give general orders. The details of their execution, and the 
supervision of the manner of execution, must unavoidably be 
left to the Executive department. So important is this super- 
vision, that it may well be said to be full as necessary as good 
laws. What is everybody's business, among one hundred 
and thirty eight men, always turns out in practice to be no- 
body's business, and the general interests of the State receive 
no careful supervision, except what it gets from our Governors. 
A majority of the members of the Legislature obtain their 
seats principally for the sake of a few months' frolic, or to 
place themselves in the line of political promotion. They have 
but little information concerning, and pay but scant attention 
to the affiiirs of the State. The Governor ponders them the 
whole year round, and cai;efully considers them, like the trusty 
and intelligent overseer of a large farm. The impotency and 
insignificance to which the office is reduced will prevent its 
being sought by proper men. "We shall lose the benefit of that 
needful supervision over the general affairs of the State and 



THE NEW CONSTITUTION OF KENTUCKY. 413 

that salutary sort of influence on tlie Legislature. Eacli exe- 
cutive office will become a sort of separate independent depart- 
ment. All the officers of that class will be like laborers on a 
laro-e farm with no overseer, each workinir accordinir to his 
OAvn will, and looking for censure or praise to the distant owner, 
who visits the farm only once in four years. 

The Federal and State Constitutions carefully and particu- 
larly provide for the manner of filling all offices. Our old Con- 
stitution does the same, and by a sweeping clause gave to the 
Governor the appointment of all officers whose appointment 
was not othermse provided for. This clause is repealed by 
the new Constitution, and in lieu of it we have the following 
bungling-worded section : 

Art. 3, Sect. 25. — "A treasurer shall be elected biennially 
by the qualified voters of the State, and an auditor of public 
accounts, register of the land office, attorney-general, and such 
other State officers as may be necessary, for the term of four 
years, whose duties and responsibilities shall be prescribed by 
law." 

The most liberal construction of this section is required to 
prevent its being convicted of positive nonsense. To prevent 
the power of the Legislature to make new offices, from being 
confined to a period of four years next after the adoption of 
the Constitution, we are compelled to give the construction 
which will require every State office, not enumerated, to have 
a term of four years. This, too, though the duty to be per- 
formed may not require the continuance of the office for more 
than three months. The Legislature can create no office for a 
shorter term than four 3'ears. 

It is quite clear that every "officer for the State at large," 
whose office is created by the Legislature, must be elected by 
the voters of the whole State. Though his salary is only one 
hundred dollars, and his duties proportionally insignificant, the 
keeper of the State-house for instance, yet he can be appointed 
in no other way than by the voters of the whole State. "WHiat- 
ever necessity there may be for his immediate services, they 
cannot be had until a general election, unless a special election 
be ordered at an expense of six or eight thousand dollars. 



414 TnE NEW CONSTITUTION OF KENTUCKY. 

Neither can any of these officers be suspended or turned out 
of office but by the slow and solemn process of impeachment. 
There is not room even for a doubt that such is the proper 
construction of this section. It not merely stands in lieu of 
the repealed section of the old Constitution, which gave all 
such appointments to the Governor, but is the only clause 
bearing on the subject, except, indeed, the tenth section of 
the sixth article, which says : " The General Assembly may 
provide for the election or appointment of such other county or 
district ministerial and executive officers as shall, from time to 
time, be necessary and proper." Thus showing a conscious- 
ness, on the part of the Convention, for enabling the Legisla- 
ture to create and direct the mode of appointment of county 
and district officers, other than those enumerated in the 
Constitution. Thus, also, showing from the omission here 
that they believed they had previously made all needful pro- 
visions, of a similar character, as to officers for the State at 
large. "When the Constitution has gone into such minute 
detail as to the appointment of nearly all existing officers, it 
would be wholly inadmissible to suppose any omission of so 
large a subject as the mode of appointment to offices hereafter 
created, or by omitting to recognize the legislative power, to 
leave it more than in doubt whether any such offices could 
hereafter be created. 

This part of the job is the mere voluntary invention of the 
members of the Convention. They were under positive in- 
structions for nothing of the sort. Public sentiment required 
nothing to be abstracted from the patronage of the Governor 
but the appointment of the judges. The balance of his patron- 
age would have still left the office highly respectable and 
influential. That it would have been better exercised by him, 
that he and the Senate would have made better selections of 
officers than are at all likely to be made by a general election 
of the whole State, no man of sense will pretend to deny. If 
the Governor and Senate are not fit to select the minor execu- 
tive officers, then all representative government is a mere cheat, 
and nothing pertaining to government can be trusted out of 
the hands of 'the people. But the cheat lies not there. It lies 
in the attempt to make the people believe that, in making such 



THE NEW CONSTITUTION OF KENTUCKY. 41o 

offices elective, thej, the pcoi)le, ^^^\\\ really have tlie appoiut- 
ment of the officers. It is next thing to a physical inipossihility 
that the cue hundred and fifty thousand voters of Kentucky 
should understandingly and considerately really make for them- 
selves selections for even the highest of such offices, such as 
the auditor and treasurer. The offices are comparatively too 
unimportant, and the men best qualified to fill them of too 
little general note for even the tenth of the voters to take suf- 
ficient interest in the subject to obtain the information neces- 
sary to a judicious choice. But when you descend to some 
petty office, with a salary of only one or two hundred dollars, 
not one voter in a thousand, if left to himself, would have a 
wish on the subject or condescend to vote at all. To present 
such a question for the decision of all the freemen of Ken- 
tuck}- — all the men from Sandy to the Mississippi — from 
the Ohio to the Tennessee — solemnly to convene our one 
hundred and fifty thousand voters to determine such a ques- 
tion, is the excess of the grossest absurdity. It is reaching, 
at a single plunge, the lowest depth of folly. Experimental 
empiricism has no lower deep. It is at once attaining the ut- 
most verge of ultra-progressive Locofocoism. The Empire 
Club of Captain Rynders could not have devised an}i:hing 
better suited to their peculiar tastes, connected as it is Avitli 
the election of constables, jailors, and assessors. The apostles 
of that sckool must seek other lands for the dissemination of 
their principles. "The combined wisdom of all Kentucky" 
has usurped their vocation, and has taken the lead in this sort 
of exemplification of the march of mind and modern improve- 
ment in the science of government. 

But we shall be told that this structure of an emasculated 
Executive department was necessary to the fixed principle that 
all the patronage of the Government should be bestowed 
through the ballot-box. The answer is, then you have proved 
your fixed principle to be a pure unmixed folly. It has led 
you to such a burlesque, so broad a caricature upon everything 
like government as is calculated for nothing so well as to bring 
the whole system of elections into contempt and disrepute. 

"Wliat care they for all this ? The system may not suit any 
purpose of good government, yet it suits very well the plan 



416 THE NEW CONSTITUTION OF KENTUCKY. 

of governing a countiy by political parties. Prove ever so 
certainly that the people cannot themselves make these ap- 
pointments, you only demonstrate the certainty of the thing 
aimed at, that party conventions shall always from necessity 
have the making of all such officers, and there will always be 
an official corps who can be readily taxed to pay the election 
expenses of central party committees. 

In near connection with this subject is the destruction of 
our old militia system. If experience can prove anything, it 
has in our two last wars proved that the only efficient militaiy 
service to be obtained from militia is by the plan of volunteers. 
To obtain these you must take a company from the bounds of 
several militia companies, a regiment from the bounds of seve- 
ral regiments, a brigade or a division from the whole State. 
This can no longer be done. The new Constitution says that 
captains, colonels, brigadiers, and major-generals " shall be 
elected by the persons subject to military duty, within the 
bounds of their respective companies, battalions, regiments, 
brigades, and divisions." No other mode of appointment or 
election is directed or allowed. 

Should a distinction be attempted between militia and volun- 
teers, to relieve us from this difficulty it will be only to throw 
us into another full as bad. Such volunteer officers, if not dis- 
trict officers to be elected in militia districts, must undoubt- 
edly be "officers for the State at large." These, as before 
shown, can, according to the twenty-fifth section of the third 
article, be appointed in no other way than by a general elec- 
tion of the people of the whole State ; that is, before a single 
volunteer company can be received into service and its officers 
commissioned, they must wait for a general State election, for 
the captains and lieutenants to be elected by the people of the 
whole State. Can anything be more preposterous, or ridicu- 
lously absurd ? Yet such is the miserable abortion which, as 
a system of government, is about to be fastened upon us in 
perpetuity, and from which the people cannot relieve them- 
selves but by a continuous effiDrt of seven long years. 

The ink with which the short-sighted " wisdom of all Ken- 
tucky" wrote this new Constitution was scarcely dry, before 
the extreme folly of the structure of its Executive department 



THE NEW CONSTITUTION OF KENTUCKY. 417 

was most strikingly illustrated. Wo learned that the soberest 
and most discreet wise men of the nation at AVashingtou were 
seriously alarmed for the Union ; that the South was deliber- 
ately calculating the value of the Union, and scheming for a 
severance, which would make Kentucky a frontier State, and 
give her a hostile border of a thousand miles to defend. A\niat 
a lamentable situation, with such a Constitution, would hers be 
in such an event ? She would have to wait seven years to re- 
peal the Constitution, before she could legally organize an 
efficient military force. 

The framers of the old Constitution acted upon no such 
short-sighted views or plans. Many an ignoramus has read, 
with a supercilious smile, that part of the old Constitutiou 
which made the Governor the commander-in-chief of the 
"army and navy of Kentucky." A^Hiat, an army and navy of 
Kentucky when she is a member of the Federal Union ? Those 
men of the old time knew well enough that could not be, that 
she could have no army or nav}- of licr own while she remained 
in the Union, but they did not know the Union would last for- 
ever. Thej^ did not choose unnecessarily to act upon the pre- 
sumption that it would last forever. They preferred providing 
for the contingency of its being broken up. They, therefore, 
gave us a stable, efficient scheme of government, suitable for 
all times and occasions, and which would need no alteration, 
feven if Kentucky were to become a separate independent 
State. The only oath of office they required was to be " true 
and faithful to the Commonwealth of Kentucky," leaving it to 
the Federal Constitution to superadd, by its own authority, the 
oath in support of that instrument. But the late Convention, 
in their zeal to amend everything they thought susceptible of 
amendment, have added to the old oath a clause to sup})ort the 
Constitution of the United States, an amendment wholly un- 
necessary as long as it remains in force here, and can only have 
practical effect after Kentucky^, by some unfortunate casualty, 
shall be driven from the Union. In that event we should be 
compelled to have a convention merely to repeal this oath, if 
needed for no other purpose whatever. As a device for creating 
uponKentuckians bonds of additional fealty toward the Union, 
it was wholly unnecessary. They are bound to it by the ever 
53 



418 LETTERS ON THE PRESIDENCY. 

reliable bond of interest, but also by the still stronger tie of a 
heart-warm and heart-seated affection. They will stand by the 
Union, and fight for it, as long as the Union stands by old 
Kentuch. 

There was a time, too, when Kentuckians would have cast 
themselves free from the thraldom of all party trammels, and 
prevented the politicians from bribing the people into the 
adoption of such a miserable Constitution as has been offered 
for their acceptance. 



CHAPTER XX. 

LETTERS ON THE PRESIDENCY. 
FiKST Published in 1840, and Republished, with Appendix, in 1859. 

IN"©. I. 

To Mr. Webster: — The reading of your recent speech at Rich- 
mond has induced one of the humble nameless million of your 
fellow-citizens who admire your talents, and appreciate your 
capacity for usefulness, to addrees you, and point to an achieve- 
ment worthy of those talents and of the utmost importance to 
our country. 

"With much pleasure he found you indignantly repelling the 
charge lately made by a clique of soi disant Democrats against 
some of our Revolutionary fathers, that they had fought for 
independence but not for liberty, "With equal pleasure he read 
your high encomium on our political institutions, and united 
in your prayer for their perpetuity. So recently after your 
nearer personal observation of England and her institutions, it 
is truly cheering to hear you say that ours are not only above 
comparison, but that the exuberance of the imagination even 
cannot fancy anything better. 

Continue, sir, so to speak and so to feel, and you need never 
hereafter doubt your reception south and west of the Potomac. 



LETTERS ON THE PRESIDENCY. 419 

"We, of tlie Soutli and West, view those institutions as the 
embodimeut of most of our national pride, most of our national 
glory, and all of our national hope. They are the proud, pre- 
eminent characteristics by which we are and wish to be distin- 
guished from other nations. lie who offers pure heart-wor- 
ship at that sacred fane is truly our countryman, let him have 
been born in what part of the Union he may. lie who best 
commends and best defends it we deem best deserving our 
esteem. 

Delightful as it is to have our institutions so prized, the 
enjoyment of an unalloyed pleasure was denied us by your 
solemn declaration that, if we are to have a recurrence of the 
scenes recently passing in the contest for the Presidency, these 
so vaunted and so prized institutions cannot last for half a 
century. 

It is matter of exciting interest to the nation, when such a 
man, upon the high responsibility of such a eliaracter and repu- 
tation, warns us that there is any existing peril which may 
limit the duration of our institutions to less than fifty years. 

You solemnly ask the old-fashioned Republicans of Virginia, 
"whether it can be supposed that this free republican Gov- 
ernment of ours can last for half a century if its administration 
cannot be changed without such an excitement, such a civil 
revolution, as is now in progress?" Now, I beg leave to ask 
you whether, when there is a "powerful party in the country, 
and a man gets into the Presidency as the head of that party," 
he can ever be turned out but by just such another excitement, 
such another revolution ? And, then, I put it to you in candor 
to say whether there will not always be such a party in the 
country, and with such a President for its head ? Answering 
these questions, as you must, in the affirmative, I again put it 
to you, whether it becomes you to lull your countrymen into 
false security, under the influence of the hopes of a "sanguine 
temperament," if such hopes you really have, instead of rousing 
them to a proper sense of their peril, in obedience to the dic- 
tates of your sober judgment. 

If the evils growing out of the contest for the Presidency 
are to be perpetually recurring and increasing evils, accompa- 
nied, too, with such peril to our institutions, then there must 



420 LETTERS ON THE PRESIDENCY. 

be some inliereut defect in tlie plan of making our Presidents. 
If so, to hope an escape from tlie peril, is to hope against or in 
despite of despair. Instead of indulging the slight solace of 
such idle hope, Avould it not better become you, and all of us, 
to endeavor to trace the evil to its root and freely apply the 
knife ? Is not such, emphatically, the great duty, the great 
obligation on this generation toward preserving from destruc- 
tion our free and happy republican institutions ? 

It is the purpose of this address to aid in pointing out the 
root of the evil alluded to, suggest a remedy, and then insist 
upon the aid of your powerful talents and distinguished repu- 
tation toward influencing the nation to allow its application. 
It is not, however, alone because of the authority of your name 
on all constitutional questions, that your aid will be so ear- 
nestly entreated, but as the leader of all that class of men 
scattered throughout the nation, holding those political tenets 
commonly known as Federal, and because of your supposed 
peculiar influence over all such. So difiicult is it to procure 
an amendment of the Constitution, that in the opinion of some, 
no material amendment will ever be made. Any amendment 
of vital importance, such as that about to be suggested, will 
necessarily require the aid of a large majority of all the intelli- 
gent men of all political persuasions. The general tenor of 
your Richmond speech has induced the belief that you would 
lend your aid toward convincing those of your own sect of the 
propriety of such an amendment. As it looks to a most essen- 
tial curtailment of the power of the most important oflicer of 
the Government, no difficulty is anticipated in convincing those 
'of the opposite tenets. The Democracy has always been ready, 
theoretically at least, to curtail political power — ever willing 
to add another "rail and another rider to the fence." 

In that speech you say, that in your judgment, it has come 
to be true, " in the actual working of our Government, that 
the Executive has increased its influence and patronage to such 
a degree, that it may counteract the will of a majority of the 
people. I believe that the power and patronage of the Execu- 
tive not only has increased, is increasing, but ought to be 
diminished." Again you say, "Perhaps it remains to be seen, 
whether the friends of the Constitution had not better have 



LETTERS ON THE PRESIDENCY. 421 

given less power to tlie Executive and taken all the inconveni- 
ence arising fi-om the want of it, rather than hazard the grant- 
ing of so much as might prove dangerous not only to theother 
departments, bat to tlie safety and freedom of the country at 
large." 

All this might well be treated by those of us who have 
received our political teaching from the Democratic fathers of 
the Republic as a distinct and most flattering acknowledi^nnent 
of their superior sagacity upon this subject. But to be candid, 
I do not know that we can, in fairness, treat it as such an ad- 
mission. For, to tell the whole truth, neither the old Demo- 
crats or Federalists ever supposed that the President could 
acquire such tremendous power as he now possesses. Its prac- 
tical developments are so infinitely beyond their theoretical 
portrayal in the Constitution, that it is but justice to its framers 
to suppose them all to have totally misconceived and misrepre- 
sented the practical operation of this department of the Gov- 
ernment. Even General Hamilton, were he now living to 
witness the display of those powers, would confess that they 
greatly transcended his ideas of a strong Government, and 
would concur with you in saying they ought to be diminished. 

You say that, "in the formation of the Constitution, the 
greatest difiiculty its framers encountered was with regard to 
the Executive power. The great and perplexing question was, 
how to limit and regulate the Executive power in such a man- 
ner, that while it defended the country-, it should not be able to 
endanger civil liberty." This was, no doubt, a perpk^xing 
question; but with due deference, the history of the Conven- 
tion proves that it was by no means the most so. By far the 
greatest, as also the most difficult and perplexing question, 
was ho,w to provide an Executive head for the Government. 
There was no other subject upon which the opinions of tlie 
Convention appear to have undergone such repeated and radi- 
cal changes. It was first resolved, by a vote of eight States 
against two, that the election of a President should be given 
to Congress, having previously negatived, by the same vote, a 
proposition to have him chosen by electors elected by the 
people, and by a vote of nine to one to have him chosen 
directly by the people. Upon reconsideration it was resolved, 



422 LETTERS ON THE PRESIDENCY. 

eight to three, that he should he chosen hy electors appointed 
hy the State Legislatures. By a suhsequent vote of seven to 
four, it was again resolved the election should be given to 
Congress. The plan adopted was ultimately carried by a vote 
of nine to two, but without any one member appearing to have, 
even then, any fixed or settled confidence in the plan. They 
merely agreed to propose it as an experiment, being the best 
scheme they could devise. 

So, also, upon a candid review of our institutions, and the 
history of their operation, it will be found that here the great 
error was committed, and not in the amount of power con- 
ferred on the President. It is by no means a necessary con- 
cession, it yet remains to be proved, that he has too much 
power given him by the Constitution, provided he were prop- 
erly appointed. The excess lies not there, but in adventitious 
and unanticipated power that has grown out of, and resulted 
from, the mode of his appointment. Since the first formation 
of national parties, Mr. J. Q. Adams is the only President we 
have had, who was not elected as the head of a party. During 
his time, there was no just cause of complaint of the excess 
of Executive power. During his whole term he did almost 
nothing, and could do nothing, because of the want of power.* 
It might with much propriety be said, therefore, that the his- 
tory of the Government thus far afibrds no evidence whatever, 
to prove that the President has too much power granted to 
him, provided he is not elected as the head of a party. Indeed, 
it yet remains to be proved that even the obnoxious, and per- 
haps interpolated power of removal from ofiice, would be im- 
proper and injurious in any other than the hands of a party 
President. 

I beg you beware, sir, how you hastily and unadvise{^y lend 
your powerful aid to the curtailing of any of the essential 
powers of that department. You need not be told that a power 
once taken from it is gone forever ; that, however strongly ex- 
perience may prove its necessity, it will never be regranted. 
Though not of those who ascribe perfect wisdom to the framers 



* Witness also the Presidency of Mr. Tyler, occurring after these letters 
were published. 



LETTERS ON THE PRESIDENCY. 423 

of our Constitution, or perfect infullibility to anj-thing merely 
human, yet I participate in that profound reverence, common 
to most of our countrymen, for their far-reachinir sasacitv, ami 
that strong repugnance to touching any of their sacred work 
with the hand of innovation, except upon the clearest and most 
undouhting conviction, after full experiment, that they com- 
mitted an error. When the increased size of the country, and 
constantly increasing population, are demanding a (lovernment 
of proportionably increasing energ}-, would it not he madness 
to emasculate that department, upon the energy of which the 
efficiency of the whole so essentially depends? 

The champion of the Constitution, before he lays aside his 
conservative armor to lead the hurrah against the powers of 
the President, Avould do well to bethink him, whether it were 
not better to give his aid in directing the reform movement 
toward the mode of his appointment, rather than against the 
powers intentionally conferred upon him by the framcrs of the 
Constitution. If it be power you wish to restrain, then look 
well to the mode of his appointment, for it confers upon him 
powers far greater than all those granted by the Constitution 
combined, and produces evils far more deleterious and danger- 
ous than those that can be traced to the mere exercise of any 
or all his powers. By only pruning the constitutional grant 
of powers, you leave the greatest of all his powers untouched. 
By leaving the mode of his appointment unaltered, your rem- 
edies will prove inefficacious palliatives, because you never 
reach the seat of the disease. In a Government so essentially 
one of public opinion as ours, the fact of his being elected by 
a direct vote of the whole nation gives him practically more 
power than all the express grants combined. In other words, 
his whole powers as President are not equal to his powers as 
head "of the great political party that put him in office. Li- 
deed, the most unanswerable objection to that mode of select- 
ing him is, that when so elected he will necessarily have too 
much power. 

But even all this excess of power is not a tithe of the evil 
growing out of the mode of his election, entirely extraneous 
from any mere exercise of his powers. It is true, that, to be 
elected, he has to become the head of a party ; he lias to be a 



424 LETTERS ON THE PRESIDENCY". 

party President ; his administration a party administration ; 
and though every such is necessarily a corrupt administration, 
yet, what is the corruption of Government and its few officials, 
in comparison to the corruption of the great body of society ? 
The contests growing out of the elections of our Presidents, 
direct and collateral, have done more to lower the standard 
of public morals, and diffuse a general corruption throughout 
society, than all other causes combined. Nothing is truer, or 
a more striking evidence of the general diftusion of this cor- 
ruption, than what you stated at Richmond, that it had become 
a received dogma, "that everything is fair in politics." The 
American, like the English voter, not only shamelessly avows 
the sale of his vote; men well received in society not only 
shamelessly avow the purchase of votes, but there is the best 
evidence for believing that the judges and other officials at 
elections are fast falling into the practice of conducting them 
fraudulently. 'No man knows better than you, that institutions 
so essentially Democratic as ours are can have no permanent 
durability, when they rest upon a foundation of such corrup- 
tion and corruptibility as that. Every intelligent observer of 
the times sees, or fancies that he foresees, the no distant day, 
when all our elections will be settled by the purse. How much 
longer it will be before they are settled by a not more corrupt, 
but a sterner arbitrament, rests in the ken of Providence alone. 

K such be the deadly accompaniment of the system of elect- 
ing our Presidents, the question presents itself, why continue 
the system ? That is the question, sir, I put to you, and wish 
that you, in your energetic and able manner, would put to this 
whole nation, Why continue the system ? 

It will be my purpose, in succeeding numbers, to prove that 
we ought to abolish the election of our Presidents. 

To do this, I shall begin with developing the motives and 
inducements to the present plan ; the mode in which its 
framers contemplated it should work in practice ; point out 
wherein and why their anticipations have been so sadly disap- 
pointed ; insist upon the evils of the present plan ; and con- 
clude with proposing a substitute. 

I subscribe myself, very respectfully (not of the new, but 
of the old school), a true Kentucky Democrat. 



LETTERS ON THE PRESIDENCY. 425 



^O. 11. 

It will be recollected that the plan, as agreed upon hy the 
Convention, required the electors to vote for two persons as 
President, declaring that the person having the highest num- 
ber of votes should be President, provided that number was a 
majority of the whole number of electors ; if more than one 
had such majority and au equal number of votes, then the 
House of Representatives, voting by States, to choose one of 
them ; or, if no one had a majority, then, from the five highest 
on the list, to choose the President. 

A summaiy of the inducements which led to the adoption 
of this plan, and of the anticipations based upon it, as de- 
veloped by the discussions in and out of the Convention, may 
be found in the sixty-eighth number of the Federalist, as given 
by General Hamilton. 

First. "It was desirable," says he, "that the sense of the 
people should opemte in the choice of the person to whom so 
important a trust was to be confided." 

The importance of this motive is sufficiently obvious. But 
the absolute necessity of yielding it a paramount influence, to 
the exclusion of many others equally important, is neither 
perceived, nor is it insisted upon by him. It could have con- 
stituted but a small portion of the inducement to create the 
electoral colleges ; for the same end could have been better 
attained by the simpler process of a direct election by the 
people themselves. The whole scope of the scheme, and of 
the other arguments used by him in its favor, rather tends 
to show that, though the choice was conferred on persons se- 
lected by the people, it was neither expected or desired that 
the wishes of the people should immediately and directly con- 
trol the choice. The clear intention was, that the intervention 
of electors should abstract the choice from the more immediate 
influence of popular sentiment. So far from intending to 
make it a direct popular election, the only proposition to that 
effect was promptly negatived by a vote of nine to one. ^^r. 
Wilson, a talented member and a staunch Democrat, who intro- 
duced the proposition, declared he v.-as almost afraid to do so, 
"being apprehensive it might appear chimerical." The same 
54 



426 LETTERS ON THE PRESIDENCY. 

gentleman, whilst the resolution stood in favor of an election 
by Congress, moved a reconsideration, for the purpose of sub- 
mitting a plan of selecting fifteen members of Congress by lot, 
and devolving the election upon them. His motion was 
seconded by Mr. Carroll, of Maryland ; and Gouverneur Morris 
said of it, that he preferred leaving it to chance, rather than 
trust it to cabal. Whilst, then, among the ends proposed to 
be attained, the plan is admitted to have efiectuated that of 
making "the sense of the peoj)le operate," yet that is the only 
one, and no merit can be inferred therefrom to the plan gener- 
ally, because this end is not peculiar to that plan, and because 
it has been effectuated in a degree so far beyond what was in- 
tended, that it not only runs counter to the theory of the 
whole plan, but has disappointed all the other results antici- 
pated from it. 

Second. " It was desirable that the immediate election 
should be made by men most capable of analyzing the quali- 
ties adapted to the station, and acting under circumstances 
favorable to deliberation, and to a judicious combination of all 
the reasons and inducements that were proper to govern their 
choice. A small number of persons, selected from the general 
mass, will be most likely to possess the information and dis- 
cernment requisite to so complicated an investigation." 

Here we have the true theory of the whole plan. The elec- 
tors were to be a body of men, selected for their virtue and 
intelligence, who, untrammeled and uncommitted by the 
pledges or instructions, were to have surrendered to them the 
whole power of choosing the President. The people were to 
make a voluntary surrender of their own predilections into the 
hands of the electors, trusting everything to their unbiased 
intelligence. Popular sentiment was to have no farther effect 
or influence in the choice than that of securing the proper de- 
gree of purity and intelligence in the individual members of 
the electoral colleges. The electors once chosen, everything 
was to be left to their discretion, — except that, to prevent its 
degenerating into a pre-arranged contest between any two men, 
not even the electors themselves were allowed to express their 
preference for any one man, but each elector was required to 
vote for two men as President. 



LETTERS OX THE PRESIDENCY. 427 

Third. "It was peculiarly (k'sirable to afford as little oppor- 
tunit}^ as possible for tumult and disorder. This evil was not 
the least of those to be dreaded in the election of a magistrate 
who was to have so important an agency in the administration 
of the Government. But the precautions that have been so hap- 
pily concerted in the si/stem under consideration, promise effectual 
security/ against this mischief. The choice of several, to form 
an intermediate bod}- of electors, will be much less apt to con- 
vulse the community with any extraordinary or violent move- 
ments than the choice of one, who was himself to be the final 
object of the public wishes. As the electors are to assemble 
and vote in the State in which they are chosen, they will be 
much less exposed to heats and ferments, which might be 
communicated from them to the people, than if they were all 
convened together." 

Here is specified, as the most prominent evil in the electing 
a Chief Magistrate, that popular ferment and strife, which it 
was supposed the concerted precautions of the system had so 
happily guarded against. It is deservedly placed in the fore- 
ground, as the evil most to be aj^prcheuded. It is the evil that 
has proved the destruction of every Government that had an 
elective Chief Magistracy. AVe are now working out the 
problem, whether such a Government can continue to exist 
for any great length of time. To the want of faith in its suc- 
cessful solution is alone to be attributed the patient acquies- 
cence of the wise and virtuous men of other countries in their 
hereditary monarchies. During the present state of mental 
advancement in Europe, with the influence of our example 
before them, it is difficult to ascribe that acquiescence to any 
other cause. They at least deem the peril so great, that they 
are content to wait a century longer for the full development 
of the experiment we are making. The result in the Southern 
Republics calls for anything but a confident security on our 
part. It is true, we have a population with habits and institu- 
tions materially different from those of any other countiy — so 
different that there is some room for hoping, if not for ])eliev- 
ing, that we may successfully escape the peril. It must, how- 
ever, be remembered that we are but of the general human 
family, possessing a full share of the vices and follies of the 



428 LETTEKS ON THE PRESIDENCY. 

race, and that we have no charter of exemption from the doom 
of other people. It is the part of wisdom and prudence to he 
vigilant as to the operations of every portion of our Govern- 
ment. There is none other requiring so constant and wakeful 
a vigilance as this. 

Fourth. "It was desired that every practicable obstacle 
should be opposed to cabal, intrigue, and corruption. The 
appointment of the President does not depend upon any pre- 
existing body of men, who might be tampered with to prosti- 
tute their votes. It is referred, in the first instance, to an im- 
mediate act of the people, to be exerted in the choice of persons 
for the temporary purpose of making the appointment. All 
those who, from situation as Senators, Representatives, and 
office-holders, might be suspected of too great devotion to the 
President in office, are excluded from the trust." 

Cabal, intrigue, and corruption he pronounces the most 
deadly adversaries of republican government. If the plan of 
the Convention has secured us against their growth among us, 
and their influence upon the Presidential election, then, in- 
deed, the Convention achieved a desideratum in the science 
of government above all praise. But, if it should appear, on 
inquiry, that it has saved us from none of those evils, but has 
fostered and propagated them to an extent, which promises 
results as deleterious as they were ever known to yield in any 
country, then, whatever merit may be accorded to the theory 
of the plan, it must be conceded that there is some inherent 
defect in it when practically operated with, that must strip it 
of every claim of merit, as either a salutary or safe expedient. 
Its authors, if they had lived to see it operating so directly 
contrary to all their intentions and expectations, would them- 
selves have been the first to condemn it. The argument de- 
duced from the danger of pre-existing bodies of men being 
tampered with, and prostituting their votes, is unanswerable 
against entrusting the election to any such body, and so far 
vindicates the superiority of the plan adopted over that first 
agreed upon, giving the election to Congress. But the argu- 
ment wholly overlooks that part of the plan adopted, which 
refers the election to the House of Representatives, in case no 
candidate receives a majority of the votes; an event of very 



LETTERS ON THE PRESIDENCY. 429 

probable and frequent occurrence. For the House of Reitre- 
scntatives is just such a pre-existing body of men as is liable 
to be tampered with, and the plan is obnoxious to this severe 
censure, just in proportion to the chance of the election being 
devolved on that body.* 

Fifth. "Another motive was, that the President should be 
independent, for his continuance in othcc, of all but tlic people 
themselves. He might otherwise be tempted to sacrifice his 
duty to his complaisance for those whose favor was necessary 
to the duration of his official consequence. This advantage 
will also be secured, by making his re-election depend on a 
special body of Representatives, deputed by society for the 
single purpose of making the important choice." 

If the plan has secured this advantage, — if it has rendered the 
President a perfectly free agent, to pursue the behests of his 
country according to the dictates of his own judgment, — if it 
has secured him from improper influence from prominent po- 
litical personages, and from the galling of party shackles, — 
then for this also it is entitled to great commendation. The 
Convention justly deprecated it as one of the worst ills that 
could ever befall the country, that our Presidents should ha- 
bitually become either the tools, the avengers, or the remune- 
rators of a party ; or that they should have the inducement to 
tamper with inliuential popular leaders to obtain a re-election. 
If, therefore, on the other hand, the effect of the plan has 
proved itself to be to generate party feuds, to render every 
election a strife between parties, and, by consequence, to ren- 
der every President the head or minion of a party, — if it causes 
him to depend upon party tactics for his elevation and re-elec- 
tion, then this supposed merit of the plan must be totally de- 
nied to it. If, at the same time, another plan can be devised, 
which shall truly and securely possess this merit, which, from 
the mode of his election, whilst it takes from him all motive 
to become a mere party President, or other than the truly in- 
dependent President of the nation, will also remove the great 

* The practical effect of the plan beinj; to give the appointment of our 
Presidents to party conventions, it has generated just such a pre-existent 
body of men to be tampered vrith. 



430 LETTERS ON THE PRESIDENCY. 

incentive to all tliose heated party strifes and corrupt political 
cabals, with which the plan of the Convention has teemed so 
fruitfully, how fearlessly may not a comparison be challenged 
of the respective merits of the two plans in this particular. 

Sixth. " This process of election affords a moral certainty 
that the office of President will never fall to the lot of any man 
who is not in an eminent degree endowed with the requisite 
qualifications. Talents for low intrigue, and the little arts of 
popularity, will not suffice to make him a successful candidate 
for the distinguished office of President. It will not be too 
strong to say that there will he a constant prohahility of seeing the 
station filled hy characters 'pre-eminent for ability and virtue.'' 

How sadly may great men be deceived, as to the practical 
operations of a system of government, the theory of which had 
been elaborated to the utmost of human wisdom ! It need not 
be asked whether this sanguine patriotic anticipation of the 
great man has been fulfilled. There is no purpose of inter- 
meddling with the personal predilections and antipathies of 
any one. It belongs not to an abstract dissertation on the fit- 
ness of a particular feature of the Constitution to weigh or 
disturb existing political prejudices. But it may be allowable 
to look into the future, and ask who of any party anticipates 
such a result for the next or any future election, so long as it 
remains dependent, as it now does, upon the effect of mere 
party combinations. Such ma^y or may not be the result of 
the next or any future election, but no man looks for it now, 
as a necessary consequence of the system. A man may be 
pre-eminently qualified for the office of President, without 
being at all qualified for the head of a party. The latter qual- 
ification is now the principal requisite to attaining the Presi- 
dency. It was vain for the Convention to have anticipated 
such results from the system, unless the influence of parties 
had been better guarded against* 

* What President have we had, during the last thirty years, whose qualifica- 
tions were of so prominent a character as to be worth a struggle to elect him? 
A book-maker has recently given a biographical sketch of all the present 
aspirants to the Presidency, more than twenty in number. His list is not 
complete ; but complete it to the full number of at least thirty, and no candid 
person will say there is an eminently well-qualified man among them. The 



LETTERS ON THE PRESIDENCY. 431 

Let US now turn to some of the reasonings used at the time 
of the adoi)tion of the Constitution, to prove that the ek-etion 
of President shoukl not be confided to Congress. It will be 
found still farther to illustrate the reasons for adopting the 
present plan, and point out some of the evils it was supjiosed 
would thereby be guarded against. For brevity, those argu- 
ments will be given as condensed and abridged b}- another. 

" One motive was to escape those intrigues and cabals which 
would be promoted in the legislative body by artful and design- 
ing men, long before the period of choice, with a view to accom- 
plish their own selfish ends. It would he in the potcer of an 
ambitious candidate, hy holding out the rewards of office^ or other 
sources of honor and profit, silentlt/ but irresistibly to influence a 
majority of votes, and thus by his unprincipled conduct secure a 
choice, to the exclusion of the purest and 7nost enlightened men of the 
country. The very possession of the elective power would cause 
it to mingle itself with all the ordinary measures of legislation. 
Compromises and bargains would be made, and laws passed to 
gratify particular members or conciliate particular interests, 
and thus a disastrous influence would be cast over the whole 
Government. The President would become the mere tool of 
the dominant party in Congress, or they would become his 
tools ; no measure would be adopted which was not in some 
degree connected with the Presidential election, and no Presi- 
dential election made but what would depend upon artificial 
combinations and a degrading favoritism." 

To modern ears this language sounds very much like a phil- 
ippic against our present system of Presidential elections ; but, 
in truth, tliey were the arguments used at the adoption of the 
Constitution, against confiding the election to Congress, and 
are what were pointed out, in those days, as some of the evils 
which it was then supposed the present plan was to obviate. 

choice between the three or four most prominent, on the score of qualifica- 
tion, is not wortli the toss of a copper. As to the great bulk, there is not a 
man of them who has less than half a dozen fellow-citizens in his own State 
of superior or equal qualification to his own. The wonder is, with those who 
know them, how such men ever came to be thought of for such a position. 
Yet from among them some partv convention will appoint our next President 
in 1860. 



432 LETTERS ON THE PRESIDENCY. 

If that plan lias, as we all know it has, instead of obviating, 
actually produced all the evils here depicted, what more can 
be necessary to satisfy every one of the imperious necessity for 
an immediate and radical change ? 

There is nothing better calculated to lower our estimate of 
human infallibility than the total failure of this feature of the 
Constitution to work in practice according to the theory upon 
which it was founded and the anticipations of its projectors. 
For there certainly never was so much political wisdom, so 
profound a knowledge of the science of Government convened 
together in any assembly as that which formed our Constitu- 
tion. If such men were so deceived in the adaptation of means 
to ends, how humiliating the lesson it teaches of the untrust- 
worthiness of human forecast ! It perhaps should teach, at the 
same time, the insufficiency of all mere paper-guards, checks, 
and balances ; and that the best, if not the only reliance, for the 
purity and perpetuation of our institutions, rests on the purity 
and intelligence of the people. If such be our only or our surest 
trust, for the perpetuation of this glorious fabric of Govern- 
ment, how sedulously should we weed from our institutions 
everything tending to corrupt our population. 

The fallacy of the whole plan proceeded from not having 
duly weighed or understood the influence of partyism on the 
elections. The practical operation of the system is not merely 
not to allow the electors that perfect freedom of choice which 
was intended, but to allow them no discretion whatever. They 
are, in no instance, elected for their individual worth and merit, 
or capacity to make a choice, but because they have already 
pledged themselves to vote for a particular candidate. ISTot 
one voter in ten knows even the names of the electors for 
whom he votes. Many never know that they are voting for 
electors at all. It is a common practice in those States, where 
the votes are taken viva voce, for the voter merely to name his 
candidate for the Presidency, and his vote is recorded in favor 
of the whole electoral ticket that stands pledged to vote for 
that person. Thus has the whole scheme, which was devised 
for the express purpose of avoiding the evils of a direct popular 
election, been set at naught, and the election become, literally 
as well as in effect, directly and purely popular. The electors 



LETTERS ON THE PRESIDENCY, 433 

have ceased to be anytliing more than a useless, unnecessary 
part of the machinery, which might safely be cast aside alto- 
gether, Avithout producing any important cft'cct upon the 
system. 

But even if the people were to fulfil what the theory of the 
plan requires from them, and unqualifiedly transfer to the elec- 
tors their power of choosing, still the electors would be so 
necessarily liable to local sectional bias, that it would seldom 
occur that the election did not devolve on the House of Repre- 
sentatives. This, however, as a constant mode, was as little 
within the contemplation of the framers of the Constitution as 
that of a direct popular election. It was barely provided to 
meet a contingency, which it was supposed would be of rare 
occurrence. Yet there are few, at this day, who are not con- 
vinced that, from this time forth, it will seldom, if ever, happen 
that the election is not devolved on the House, except where 
it is the result of a contest between two pre-existing parties. 

H such is to be the constant result, it would be far better at 
once to do away with the cumbrous preparatory machinery of 
electing electors, with all its accompaniment of popular fer- 
ment and strife, and give the election directly to the House. 

But no such plan can ever obtain public sanction. Why it 
cannot and should not, will be shown in the next number. 

No. m. 

I have said that the election of President never will or ought 
to be given directly and exclusively to the House of llcpresen- 
tatives. It never will, because the large States will not agree 
to the present mode of voting there by States, and the smaller 
States will not consent to change it into a vote per capita. 

It ought not to be so given, because, without dwelling on a 
host of other objections, there is an incompatibility in the exer- 
cise of such a power by the House, when viewed in conncetion 
with other features of the Constitution, alone sufficient pe- 
remptorily to forbid it. To give requisite energy and effieiency 
to the Government, the President must always be allowed to 
retain vast power and patronage. Their exercise is natuially 
liable to more abuse and corruption than all the other opera- 
tions of Government. The members of the House of Repre- 
55 



434 LETTERS ON THE PRESIDENCY. 

sentatives are the natural, as well as constitutional, sentinels, 
to watch and guard against its ahuse. The President should 
be neither their creature nor their master. The powers they 
severally possess are practically and theoretically of an antag- 
onist character, and are wisely placed as a mutual counterpoise. 
This counterpoise is entirely destroyed when he is elected by 
the House. "We find, in practice, that the party in Congress 
who even lend the aid of their influence toward making a 
President by the popular vote, are bound to sustain him, right 
or wrong, or, at least, do so sustain him, in order to sustain 
themselves. The talents and vigilance which should be devoted 
to the detection and exposure of Executive abuse of power, 
become its defenders and apologists. The corruptions of the 
Government are successfully cloaked under the imputed virtue 
and vigilance of the Representatives of the people. This is true, 
and of easy proof, as to every party President we have ever 
had. The great bulk of the people are too removed from the 
immediate scene of action and source of correct information, 
either to detect the imposition themselves or to credit its exist- 
ence, when detected by political adversaries whom they habit- 
ually distrust and disbelieve. This destruction of the natural 
functions, and entire perversion of the assigned duties of the 
immediate Representatives of the people, constituting, as it 
does, one of the strongest objections to the present system, 
would apply with redoubled force to a plan vesting the election 
exclusively in the House. 

The amendment of the present mode, which seems hereto- 
fore to have obtained most favor is that which, taking from 
the House all participation in the election, and abolishing the 
intervention of electors, gives it exclusively to the people. 
This change might be a step from the bad to the less bad ; but 
without any decided approximation to the good. It is a mode 
into which the nation might be driven, in avoidance of the 
evil of frequent elections by the House ; but it is one which 
would never have been proposed or adopted as an original 
scheme, for its own merit, or as one likely to avoid any of the 
ills, or attain any of the advantages within the contemplation 
of those who framed and adopted the Constitution. 

The present blended plan is liable to objections, therefore, 



LETTERS OX THE PRESIDENCY. 435 

that would not apply to cither of those aniendments scparati-ly. 
"We have now all the heat, turmoil, imhlic exciteiueiit, and 
corruption that could possibly result from a direct poiiiilar 
election, without any certainty of the contest resulting in the 
selection of one who will be acceptable to a majority of the 
nation. If it has not already happened in the case of Mr. 
Adams, it is easy to see that it may and no doubt often will 
happen (from the mode of voting and other causes) tliat the 
person selected by the House will be unacceptable, not merely 
to a majority of the nation, but even to a majority of the mem- 
bers of the House. The present plan, therefore, except in the 
cases of contests between two existing parties, has not even 
the merit of securing to popular sentiment a certain control 
over the result. This is radically wrong, and Mr. Adams's case 
is a striking instance in proof that it is so. So long as the 
system of electing is kept up with an ostensible submission of 
the question to the popular voice, the popular voice ought to 
control the result. 

The great objection to the present plan, or any mere modi- 
fication of it, is its inevitable tendency to generate party feuds 
of the most disgracefid and deleterious character. The natu- 
ral proneness of all republics to this inherent vice was neither 
overlooked nor disregarded by the Convention. The misfor- 
tune is, that they miscalculated the sufiiciency of the guards 
which they employed against it. The fact was not then suffi- 
ciently known that to make the people indirectly participate 
in the election was ultimately to give it to them directly and 
exclusively. The Convention was too well versed in human 
character not to know the vast machinery of corruption that 
would be put in requisition to excite the great l)ody of the 
people, if the election were transferred directly and exclu- 
sively to them. 

Doctor Franklin proposed, in Convention, that the President 
should be allowed no pecuniary compensation for his ser%'ice8. 
Listen to a part of what he said in support of his proposition, 
and then judge whether human nature was understood in that 
day or not: " There are two passions that have a powerful in- 
fluence on the affairs of men. These are ambition and avarice ; 
the love of power and the love of money. Separately, each 



436 LETTERS ON THE PRESIDENCY. 

has great force in prompting men to action ; but when united, 
in view of the same object, they have in many minds the most 
violent effects. Place before the eyes of such men a post of 
honor, that shall be at the same time a j)lace oi profit, and they 
will move heaven and earth to obtain it. The vast number 
of such places it is that renders the British Government so 
tempestuous. The struggles for them are the true sources of 
all those factions which are perpetually dividing the nation, 
distracting its councils, hurrying sometimes into fruitless and 
mischievous wars, and often compelling submission to a dis- 
honorable peace. 

"And of what kind are the men that will strive for this pro- 
fitable pre-eminence, through all the bustle of cabal, the heat 
of contention, the infinite mutual abuse of parties, tearing to 
pieces the best of characters ? It will not be the wise and 
moderate, the lovers of peace and good order, the men fittest 
for the trust. It will be the bold and the violent, the men of 
strong passions and indefatigable activity in their selfish pur- 
suits. These will thrust themselves into your Government, 
and be your rulers. And these, too, will be mistaken in the 
expected happiness of their station : for their vanquished com- 
petitors, of the same spirit and from the same motives, will 
perpetually be endeavoring to distress their administration, 
thwart their measures, and render them odious to the people." 

Does not this sound like a thorough knowledge of human 
nature ? does it not almost seem as if the wise old doctor had 
somehow realized his own queer wish of being bottled up in 
good old Madeii'a, and, after the lapse of fifty years, resusci- 
tated to see what the country had come to, and give this 
graphic sketch of the working of our system of Presidential 
elections ? I cannot refrain from giving another extract from 
the same speech. 

" It will be said we don 't propose to establish kings. I 
know it ; but there is a natural inclination in mankind to 
kingly government. It sometimes relieves them from aristo- 
cratic domination. They had rather have one tyrant than five 
hundred. It gives more the appearance of equality among 
citizens, and that they like. I am apprehensive, therefore, 
perhaps too apprehensive, that the Government of these States 



LETTERS ON THE PRESIDENCY. 437 

may in future times end in a monarcliy. But tlii.s catastroi»lie 
I tliink may be long delayed, if in our proposed nystem we do 
not sow the seeds of contention, faction, and tumult. If we 
do, I fear that, though at first we do em[)loy a number, and 
not a single person, the number will in time be set aside, it 
will only nourish the foetus of a king, and a king will ulti- 
mately be set over us." 

How is the fact — what says experience after fifty years' test 
of the system ? did they not sow the seeds of contention, fac- 
tion, and turmoil? If, instead of intending to avoid those 
evils, as they no doubt honestly did, they had intended to oast 
among us the very apple of perpetual discord, they could not 
have better succeeded, by any other device, than in that they 
unwittingly adopted, in the system of electing our Presidents. 
Let us look a little into what the system has already produced 
in that way, and it will enable us the better to anticipate what 
will ensue from the same cause in future. 

The first serious contest for the Presidency generated a party 
feud that lasted fifteen or twenty years, and had well nigh 
severed the Union. The second created another that has 
lasted twelve years, and promises to last at least four more. 
They both were and are felt in their efiects throughout all the 
ramifications of societ}-. They poisoned and tlioroughly cor- 
rupted the course of legislation in both the Federal and State 
Governments. The influence of each was and is felt down to 
the election of a constable. The first severed the nation, both 
in and out of Congress, into two great parties ; the one uni- 
versally censuring, whilst the other, with a zeal equally blind, 
approved everything the Administration did. The results of 
the second have been about the same. What has been done 
in Congress for the last fifteen years, but with an exclusive 
eye to the ensuing Presidential elections ? During both those 
contests, every member of Congress and the State Legislatures 
was and is elected with a view to that subject alone, without 
a thought on his qualifications as a legislator. The question 
has mingled itself, as it did during the days of Jefi'ersou and 
Madison, with even the social relations of life, making private 
individual friendships and enmities, and extending to tlie 
operations of private business ; it even gives to, or Uikes from, 



438 LETTERS ON THE PRESIDENCY. 

a mechanic his employment. The parties are no longer sev- 
ered, as in the days of Jefferson and the elder Adams, by even 
the appearance of great leading principles, which gave that 
contest the outward aspect at least of something noble and 
worthy to stir freemen and republicans. "Wliatever may be 
said of the subsequent issues that have been formed since the 
present contest began, it had its rise from the merest, the most 
unworthy, the most degrading scramble for office and power. 

If we are not now, in the language of Mr. Jefferson, all 
Republicans, all Federalists, we have become so mixed that 
the only true distinction is between those who are successful 
and those who are unsuccessful in the scramble. Democracy 
still retains, as a word, great potency among us ; it is still a 
talisman to evoke a great spell upon the people. But so little 
do its principles concern those who so successfully evoked and 
used it, that the chief offices of the Government passed through 
the hands of distinguished, unreclaimed, unconverted, adher- 
ing Federalists, who, whilst ruling the nation in the name and 
by the authority of the great Democratic party, engrafted on 
the Government some of the strongest of their own Federal 
principles. 

"We all recollect, and for the sake of posterity it should never 
be forgotten, the excess to which parties were carried in old 
Democrat and Federal times. Some of the brightest and 
noblest men of the Republic suffered party exacerbations to 
carry them so far, as to give cause for suspicion that they 
wanted common regard and affection for their country. 
"Whilst their native land was in a death struggle with an all- 
powerful foreign nation, in as righteous a war as ever was 
waged, they gave it no succoring aid, lent it no helping hand, 
nor yielded it even " the cheering of a friendly voice ;" but, as 
far as in them lay, by a more than apathetic indifference, un- 
nerved and paralyzed the country in its gallant efforts to free 
itself from the peril in which it was placed. Is it now credible 
that just when the country had successfully passed the crisis, 
when peace was restored, and when all true hearts were swell- 
ing with exultuation for the then recent and even brilliant 
victory of New Orleans, that a distinguished member of that 
party, standing among the first for talent, and whose memory 



LETTERS ON THE PRESIDENCY. 439 

is still honored, whilst uiibosoniing himself in a private conti- 
deutial letter, expressed a stron<^ regret at the achievement of 
that victory, because it would render Mr. Madison's Adminis- 
tration popular? Is it credible that the capture and vandal- 
like sacking of Washington City was hailed with cheers and 
applauding shouts by native-born citizens of this country? 
To such an extent were the minds of the people of Xew Eng- 
land inflamed by party strife, during the war, that it remains 
a question between them and their leaders to which the credit 
is due, that some distinct overt act was not perpetrated toward 
the severance of the Union. Do I more than justice to the 
present state of feeling among that people, in believing that 
there needs no foreign censure to bring upon them a proper 
sense of that great error? The spirit of the Pilgrim fathers, 
who blended so finely the characters of republican soldier and 
Christian martyr, has all evaporated, or their descendants are 
longing for the occasion that shall enable them to right them- 
selves in the estimation of their countrymen, by washing out 
every trace of that error with their blood. I venture the pro- 
phecy, that whenever again the national banner shall flaunt 
the breeze in defiance of a foreign foe, they will be foremost 
in their efibrts to make the defiance good ; and, that discarding 
all preachings, whether lay or ecclesiastical, which do not 
teach duty to country as the paramount earthly obligation, the 
rallying cry of all New England will be the noble sentiment 
of the gallant Decatur, '■'•our country, right or wrong." But 
whilst others, in fraternal sympathy for human frailty, overlook 
that error, and trust to her redeeming virtues, let her never 
forget that the only blot on her escutcheon is mainly owing to 
the excesses of party spirit growing out of contests for the 
Presidency. 

Can it be certainly affirmed of the leaders of the Democratic 
party that, if their situations had been reversed, their conduct 
would not have been very similar to that of the Federal leaders 
during the whole course of that conflict? lie who has suf- 
ficiently studied human nature in history and personal obser- 
vation, must doubt whether it is worthy of such a compliment. 
It is a most grievous evil to proud ambitious minds to l)e shut 
out, with a ban of proscription, from all the dignities and 



440 LETTERS ON THE PRESIDENCY. 

honors of their country. There is no principle or motive of 
human action, whether in religion or politics, of such efficacy 
in moving large bodies of men, and driving them into excesses, 
as that of partyism. History proves this. "We should prob- 
ably accord too much merit to any set of men, to say ihej 
would not have been similarly swayed by party spirit, if equall}?- 
placed within its influence. Witness the conduct of some of 
those Democratic leaders in pursuit of the rash remedy of 
nullification, to avenge their party defeat in opposition to the 
tariff. You may tell us that the people of South Carolina 
never would have been stimulated to such excesses, to redress 
supposed pecuniary wrongs, if Mr. Calhoun and his talented 
friends had not then labored under political proscription and 
had personal wrongs to avenge. He would retort, that the 
people of New England never would have been stimulated to 
such excesses during the war, in redress of their supposed 
pecuniary wrongs, if their leaders had not then labored under 
the same proscription, and had their party defeats to avenge. 

Let him who is disposed to deny such potency to party 
spirit, first inquire and ascertain what it is. If he wishes to 
know it in its effects, let him trace them in the ruins of all 
other Republics, or in the oceans of human blood with which 
the world has been drenched by partyism in religion. Would 
he know it farther, let him ask all history, or even the political 
party history of his own yet infant country. He will be told 
that it is a ruthless tyrant, whose verj^ life-principle is an 
ignoble selfishness that treads upon and crushes in its path all 
the kindlier sympathies and more generous impulses ; rends 
asunder the social bonds and fraternal ties ; commands one 
only duty, obedience; has one only principle, for its whole 
moral qo(\.q, fidelity ; knows no friendships, makes no alliances, 
but those of interest ; not implacable toward its foes, it is un- 
forgiving toward its tiring or faltering friends ; for apostacy, 
the only crime in its code, it hoards its deadliest vengeance ; 
in a word, it is the evil genius of Republics. It is that evil 
genius which has met, and sooner or later will meet, the last 
patriot of every free country at its fatal Phillippi. 

Such sweeping general censure may seem to require from 
the writer the confession, that he claims for himself, person- 



LETTERS ON THE TRESIDEXCY. 441 

ally, no cxeiTiption from it. lie admits himself to he a full 
partaker of those foibles and vices of his race that lead to such 
excesses, when brought under the influence of pnrtyism ; and 
that formerly he was a full partaker of the violent political 
partyism of the day. 

Prudence forbids the opening of the later pages of our his- 
tory ; but were it done, what a fruitful fund for comment would 
the political transactions of the last sixteen 3'ears afford ! How 
instructive and valuable a lesson, as to the effects of party 
spirit, would be afforded by laying bare to public gaze the true 
springs and motives of action in the various party operations 
of that period ! How important and useful to the present in- 
quiry would it be to strip military renown of all the mighty 
influence and power over public sentiment which the unini- 
tiated have so causelessly ascribed to it; to detect and expose 
the monstrous falsehood history will innocently pahn upon 
posterity, by attributing to military fame and personal popu- 
larity what properly belongs to party drill and discipline. To 
show, for instance, various measures of General Jackson that 
were not sustained by his personal popularity, but by the 
strength of his political party, and through its well-drilled 
obedience. 

You and Mr. Clay, and other leaders of your party, though 
somewhat of the latest, seem at last to have come to full light 
on this subject. You all seem to have come at last to the full 
knowledge that "names are things," and when party names, 
that they are most potent things. Hence you all have spared 
no pains, during the late campaign, to convince the people 
that the men in power are not true Democrats, and that their 
measures are not Democratic measures. You have made much 
profit thereby, and none of you will ever again fail to see this 
subject in its true light. Your zeal in your new preaching 
has almost convinced you that you 3'ourself are a Democrat; 
whilst Mr. Clay's has caused him to remember that lie has 
always been one. 

These topics, however, must be forborne. Even for the pur- 
poses of an abstract discussion, there might be ofloncc in show- 
ing with how small an outfit of popular support the two sons 
of military glory commenced their political career, and how 
56 



442 LETTERS ON THE PRESIDENCY. 

despondingly for a time they pursued it, until by chance each 
was taken up by party, packed ^\'ith the remnants of the for- 
tunes of other aspirants, and so each, by party, made to win 
the throne. 

Ko. IV. 

To avoid dabbling in existing party politics, I will give you 
from Mr. Clay's able Hanover speech, perhaps the ablest he 
ever made, his view of a part of the effects and operation of 
partyism in this country : 

" Modern Democracy has reduced the Federal theory of a 
strong and energetic Executive to practical operation. It has 
turned from the people and their immediate representatives, 
the natural allies of genuine Democracy, to the Executive ; 
and, instead of vigilance, jealousy, and distrust, has given to 
that department all its confidence, and made to it a virtual 
surrender of all the powers of Government. The recognized 
maxim of royal infallibility is transplanted from the British 
monarchy into modern American Democracy, and the Presi- 
dent can do no wrong ! The new school adopts, modifies, 
changes, renounces, renews opinions at the pleasure of the 
Executive. Is the Bank of the United States a useful and 
valuable institution ? Yes, unanimously pronounces the Demo- 
cratic Legislature of Pennsylvania. The President vetoes it 
as a dangerous and pernicious establishment ; the Democratic 
majority in the same Legislature pronounce it to be danger- 
ous and pernicious. The Democratic majority of the House 
of Representatives declare the deposits of the public money 
safe in the Bank of the United States. The President says 
they are unsafe, and removes them ; the Democracy say they 
are unsafe, and approve the removal. The President says the 
scheme of a sub-treasury is revolutionary and disorganizing ; 
the Democracy say it is revolutionary and disorganizing. The 
President says it is wise and salutary ; the Democracy say it is 
wise and salutary." 

This is a pretty picture, sir ; and, though some will say there 
is caricature in its intended application, all must agree it is a 
fair portraiture of modern partyism. The picture, however, is 
not complete. Let it be my task to fill it up with a few touches 



LETTERS ON THE PRESIDENCY. 443 

of ancient Democracy and Federalism, in wLich none shall say 
there is any caricature, but a true painting from the life. 

The President said, and ancient Democracy said after him, 
in 1810, that a national bank (then under a Federal directory) 
was unconstitutional, useless, and dangerous. Ancient Fede- 
ralism said it was constitutional, useful, and not at all dangerous. 
In 1815 and 1816 the President said a bank was constitutional, 
not dangerous, and very necessary. Ancient Democracy said 
as the President said, and chartered a new bank. Thou<rh ex- 
perience, since 1810, had proved the necessity of a bank — 
though the currency was then more deranged than it ever has 
been since, and though such an institution was then more 
needed every way than it has ever been at any other period — 
yet it might fall into Democratic hands, and might give 
strength to the President's party ; and what said ancient Fede- 
ralism to it then ? A\liy, with such men as Daniel Webster 
and John Sergeant at its head, unanimously said such an in- 
stitution was unnecessary, pernicious, and very dangerous. In 
1834, when the Bank came up for recharter, and its direction 
was not to be in the hands of the modern Democracy, the Pre- 
sident said of it, and the modern Democracy said after him, 
as Mr. Clay has stated. But now what said ancient Federal- 
ism to it, those who had not got "dyed in the wool," and 
turned Democrats ? Why, that it was very necessary, not per- 
nicious, and not at all dangerous. 

]!s^ow, sir, the picture is complete. ■ All men must recognize 
it as a fair likeness, a faithful full-length portraiture of one 
feature of partyism in this country. Look upon it, consider 
it well ; is it not a most beautiful picture ? With such men as 
James Madison, Henry Clay, John C. Calhoun, Daniel Web- 
ster, John Sergeant, Andrew Jackson, Martin Van Buren, etc., 
etc., etc., grouped together as the principal personages in the 
foi^eground, is it not a most observable picture, well worthy 
the long, and continued contemplation of the whole nation? 
It suits not the present purpose to point out its several beauties. 

There is also another topic that mav be referred to, though 
it is an important item in the party politics of the day, because 
it is not peculiar to this day, and because it has been the occa- 
sion of severe censure against every President we have ever 



444 LETTERS ON THE PEESIDENCY. 

liad, except "Washington and Monroe ; and not against them 
only because during the Administration of the first, parties had 
not yet been duly formed, and during that of the other, they 
had not yet again risen, since the extinction of the old Federal 
party as a political body. The allusion is to the habit of all 
our other Presidents, of bestowing the offices and patronage 
of the Government upon political partisans. It is a great 
mistake, or a great imposition upon credulity, that this abuse 
is of recent origin. "What Democrat obtained office under the 
elder Adams ? Party lines have never been more strictly drawn 
or adhered to than during his time. "Who, of the whole 
phalanx of brilliant talent embodied in the Federal ranks, 
received distinguished office or lucrative trust from Jefiferson 
or Madison, with the exception of Mr. Bayard ? The appoint- 
ment of Mr. J. Q. Adams is not admitted to be an exception. 
He was considered to have renounced his party ; they, at least, 
renounced him. 

This, however, though formerly viewed as a great abuse of 
the trust reposed in the President, is now overlooked on account 
of the still more flagrant abuse of turning a political opponent 
out of office to make room for a political partisan. Nor is 
this altogether of modern origin. It is believed there were 
some few examples of the sort under Mr. Jefferson. It has, no 
doubt, much increased of late years. It is, however, but a 
natural increase, not attributable in an especial, at least not in 
an exclusive degree, to the present incumbent or his immediate 
predecessor. It is but a necessary result from attaining the 
Presidential chair through a popular election. They have but 
acted in obedience to the destiny of all party Presidents. The 
cravings and importunate bowlings for office of political parti- 
sans must be silenced and gratified. They will not be denied. 
What has been done in that way is but the type of what is to 
be done in all time to come. There is no possibility of receding 
from the practice of this abuse of power. After the lapse of a 
few more years, use will habituate the public mind to the prac- 
tice, and it will become as much a matter of course as it now 
avowedly is in the State Governments of New York and Penn- 
sylvania. 

No disrespect is meant, nor is there any intention to detract 



LETTERS ON TUE PRESIDENCY. 445 

from tlie geutlcman who in all proLaljility will be raised to the 
chair for the next term. As much coiitidence is placed in liis 
pledges as would be placed in those of any man. To say that 
he will not displace any of his political enemies to make room 
for his political friends, would be to say for him what his 
warmest friend will not, — that is, that he is more than mortal. 
"What shall they who were the recipients of all the benefits of 
that abuse of power, for which he who so abused it was hurled 
from office, they who justified and gloried in the abuse, shall 
they all be permitted to continue to receive those benefits? 
Political patience will not endure it ; the mildest, most dispas- 
sionate man of the party will exclaim against it. Some must 
be sacrificed, if for nothing else, for example's sake, or to 
gratify popular vengeance. Once begin the process, and there is 
no stopping-point. Whatever may be the indi\'idual feelings 
of General Harrison, however strongly the dictates of his own 
judgment and inclinations may prompt to a different course, 
he will find himself the slave of the circumstances in which 
he is placed, and will be compelled, in spite of himself, to yield 
to the imperious dictations of his party. lie will, no doubt, 
honestly endeavor to shelter himself behind his pledges, and 
fulfil them to the letter. He will insist upon carrying out Mr. 
Jefferson's rule, not to disturb any man who has not been en- 
gaged in electioneering. They will acquiesce in that ; but they 
will take good care to prove that every incumbent has been 
so engaged. Thus, by means of the verj^ rule devised for his 
own protection, they will cause a clean sweep from office of 
every officer in the whole Union. That is one mode ; there 
may be others ; but in some mode, be assured, it will be done. 
There are the best reasons for believing, almost for knowing, 
that General Jackson reached Washington, prior to his first 
inauguration, fully conscious of the deleterious tendency of 
this practice, and with a firm resolve to check its further growth, 
so far as he could, by the efi'ect of his own example. He is 
grossly misreported, or he repeatedly, most solemnly, and reso- 
lutely declared that he would neither be persuaded nor driven 
into such a course. The result has been seen. But we will be 
told that he fell into bad hands ; he was unfortunate in the 
character of the indi\aduals about him. Aye, indeed, he did 



446 LETTERS ON THE PRESIDENCY. 

fall into bad hands ! He fell into tliose very same bad hands 
that will await every President who reaches the chair through 
a violent party strife. He fell into the hands of his political 
partisans. Before he arrived, the less prudent among them 
had not hesitated to avow that they had fought for the spoils 
of the camp as well as the honors of victory, A majority of 
the Senate, by rejecting unexceptionable nominations, for no 
other reasons but to leave the offices for him to fill, had already 
told him, in terms not to be misunderstood, what the party 
expected from him. 

If this statement be correct ; if a man of such iron inflexi- 
bility of purpose was made to yield to party dictation, what 
security have we, what reliance is to be placed in the mere 
personal qualities of a President to save us from the recurrence 
of these things ? 'T is vain to look for it. The system of rewards 
and punishments, as it is termed, is an inherent part and natu- 
ral consequence of our system of electing Presidents. They 
must forever exist together, the cause and the consequence, the 
one of the other. "Wlienever all the offices of a country are 
left liable to be attained by party heat and strife, they are cer- 
tain to generate all the heat and strife necessary to obtain them. 
They become literally the thing contended for; and whoever 
may be the instrument used for attaining them, he will be 
made to know and feel the full force and efficacy of the implied 
obligation in favor of his party. They who do the work must 
and will be paid for it. It is said they allowed General Jack- 
son to appoint only two members of even his own first Cabinet ; 
and that of the whole first batch of foreign ministers, only one 
of his own selection. 

The character of the appointments thus forced upon him 
were such, as materially to lower the dignity and importance 
of the offices themselves, if they did not in some instances 
actually degrade them. Such was the gross disparity between 
the offices and the officers, that it stripped all semblance of 
disguise from the motives for the appointments, and they stood 
bare-faced before the nation, as the price actually paid for 
partisan services rendered. 

Thus far, every party President must be the tool of his party ; 
he must pay his troops, he must reward well his higher officers, 



LETTERS ON THE PRESIDENCY. 447 

and tliey in turn be allowed to dribble ont to the rank-and-file 
and inferior subalterns. But when this is done, when this side 
of the account is closed, if he be a man of energy, lie makes 
subservient minions of those same officers, who by that simple 
principle of cohesion, self-interest, were able to dictate to him, 
pay or death ; and he, in his turn, dictates obedience or death. 
By the rewards he has distributed at their dictation, by those 
in expectancy, which are ever in view, and for which they reach 
forward with an ever-eager clutch, he receives an absolute 
obedience. 

"Where now is your admirable system of checks and balances, 
that elaborated perfection of human wisdom ? All swallowed up 
in the vortex of partyism. Where now are your proud Senators, 
the dignified representatives of sovereign States ; where are your 
independent Eepresentatives of the people, those pure ser\'ants 
fresh from the hands of the people, the jealous, ever-watchful, 
the natural and appointed guardians of all their rights and 
interests ? If to be found anywhere, they are to be found in 
the ranks of the opposition, and only there ; because, being 
of the opposition, they are free to detect and denounce abuse 
of power. K you look to find such Senators and Kepresentar 
tives among the dominant party, you are upon an idle search. 
They might once have been found there ; according to the 
theory of the Constitution they were always to be found there; 
but the Constitution does not work according to that theory; 
they are no longer there. Wliere, then, are they? They have 
become a political party; they have enlisted under a party 
leader for the war. Their duties now are to obey his com- 
mands, sustain his usurpations, wink at his abuses of power, 
advocate everything he proposes, denounce ever^ihing he dis- 
approves, malign his enemies, traduce and punish deserters. 
There may be some few voluntary deserters ; but only so many 
as there may be found of Senators and Representatives of suf- 
fi.cient firmness and integrity to encounter the peril of almost 
inevitable political death. There are but few such. That they 
are so few need not be wondered at, when it is recoHected 
that none but well-drilled party men ever become Senators or 
Representatives in high party times, and consequently, that 
they are little apt to see evil in anything but what is prejudicial 



448 LETTERS ON THE PRESIDENCY. 

to tlie party ; and if tliey did, it would be more than counter- 
balanced by the supposed necessity for preserving the domi- 
nance of the party. There is, therefore, little disposition to 
desert. But if such a disposition should exist, and a few mem- 
bers were to desert, so far from being applauded and sustained 
by their constituents, they would be the very instruments of 
their punishment and political degradation. The head of the 
party and their fellow-members would only pity them for their 
imprudent indiscretion, but the people would hate and detest 
them. Witness the remorseless and summary political death 
suffered by all those who ventured singly to leave the ranks of 
General Jackson. It may be asked, are the great body of the 
people also corrupted? "Not so. They are only sufficiently 
imbued with the spirit of partyism. They are merely blinded 
by party zeal. When a deserter comes before them, he comes 
with the prima facie taint that all parties, for selfish ends, have 
agreed to attach to deserters. His very name of designation 
is one of infamy and reproach. lie comes before the people 
with the brand of a suspected witness in his own cause. He 
will be met by tens and twenties of other representatives of 
the party, of equal apparent respectability, equally enjoying 
public confidence, who will either wholly deny alleged facts, 
or labor to prove that they constitute no abuse, or at most, a 
venial one. 

To put to rest all doubts of the power of the head of the 
party to crush, at will, any single member of it, let us examine 
the case of Mr. Calhoun, — a man of pre-eminent ability, of 
mental endowments fit to adorn any station in any country, — 
one who, in a twenty years' distinguished public service, had 
successfully passed through all the regular gradations of politi- 
cal preferment, not merely with unblemished public and 
private chai*acter, but with an ever increasing reputation, until, 
at last, by an almost unanimous vote, he had attained the 
second office in the gift of the people. He had not only a widely 
disseminated personal popularity, but many distinguished men 
from various sections for his warm, devoted, personal friends. 
He had not only a supposed powerful influence over his party, 
but was admitted on all hands to be the most probable suc- 
cessor to the Presidency, after the then incumbent. Thus 



LETTERS ON THE PRESIDENCY. -iVJ 

bearing "his Wusliing lionors tliick upon liim," woU might In- 
think "full surely his fortunes were a-ripening." But, from 
no greater cause than a mere personal quarrel with General 
Jackson, about a matter of no public moment, and of l>ut little 
importance anyway, there suddenly came a "killing frost" 
that wilted and blighted all these hopes and honors in a single 
day. To descend from poetry to slang, from the moment 
General Jackson struck him that blow, he was a dead cock in 
the pit — dead as if the coffin had closed over his bones. All 
men saw it. Summer friends slunk away from about him as a 
doomed man. His influence and power with the party were 
gone on the instant. Like a proud spirit he resisted and re- 
sented. That sealed his doom irrevocably. But yesterday 
" the rose and expectancy of the fair state, the obsei-ved of all 
observers;" to-day, "none so poor to do him reverence." 
Sitting in his high place, a mournful emblem of the instability 
of human greatness, he but served exulting rivals with averted 
thumb to point a bitter gibe, reminding him of the barren, 
non-descending sceptre. The rankling of that celebrated sar- 
casm, if rankling there were, was in the consciousness of the 
fallen great one that he himself was mainly instrumental in 
elevating General Jackson to the Presidency. For it is but 
sober truth, that, without Mr. Calhoun's aid, General Jackson 
never could or would have been made President. Xothing is 
more undoubtedly known than this, among all the initiated, 
among those who knew and understood the various party 
operations and combinations by which alone General Jackson 
was elevated to the chair. How strikingly illustrative of 
the overwhelming power of the head of a dominant party 
is it, that he who had the power to place him there, had not 
the power in self-preservation to ward off one single death- 
dealing blow from the hand he himself had armed with power. 
It is not intended to deny but that the dominant party in 
Congress has the power to curb and control a party President, 
if it can be brought to combine unanimously and risk the con- 
tinuance of the part}' domination among the people. Far from 
it. On the contrary, it is firmly believed that in the palmiest 
days of General Jackson, at the very height of his supposed 
arbitrary' power, if sucli a combination could have been brought 
57 



450 LETTERS ON THE PRESIDENCY. 

to bear against him, if the partj scaffolding on which his power 
was raised and sustained had been knocked from under him, 
his political death would have been as sudden, as unavoidable, 
and as irrevocable as that which he himself had inflicted on 
Mr. Calhoun. The House of Representatives, if ever it can 
be brought to act with unanimity on any subject, will prove 
itself to be, as it always should be, the strong arm of the Gov- 
ernment. It more nearl}- represents popular sentiment than 
any other department, and popular sentiment is nearly the 
whole power of the Government. But such combinations 
must be of rare occurrence; probably not more frequent than 
those of successful rebellions and conspiracies in other coun- 
tries. 

As an evidence of how far we may expect or hope good from 
such combinations, an incident taken from General Jackson's 
party reign aftbrds an instructive example. Speaking of his 
bank veto, he told his Secretary, Mr. Duane, that if Congress 
had remained in session six weeks longer, the bank would have 
bought a recharter by bribery of the members. This declara- 
tion was made public, and to this day remains undenied and 
unexplained, as GeneralJackson's opinion of the corruptibility 
of his own party in Congress, — for it was they who opposed 
the re-charter, and required the bribe to bring about what he 
said could have been so bought. At the next session after the 
disclosure of this declaration, Congress had to pass upon his 
order removing the deposits. Did the party which he had thus 
so grossly insulted, who thus stood accused by him before the 
whole nation of such corruptibility, did they avail themselves 
of the occasion he had aflbrded, by that obvious abuse of 
power, to make him feel the eftects of a commendable resent- 
ment ? 'Not so ; but, like crouching hounds, they took the lash 
of their master, and presented themselves as a shield between 
him and popular censure. 

If our system of electing Presidents has already brought us 
to a point like this, if it has rendered the Executive the ab- 
sorbent of so nearly all the powers of Government, its inevi- 
table tendency must be ultimately to make the President, in 
very truth, the Government, literally the whole Government. 
If the popular excitement produced by a Presidential contest, 



LETTERS ON THE PRESIDENCY. 451 

as we now see it, be any fair index of what wc are to expect 
in future, what Avill it be when that ultimate point shall have 
been attained, with only the natural accessions to the already 
tremendous patronage of the President; when the Presidential 
chair from the power, the honor, and high distinction it will 
confer, shall become the highest prize ever held forth to human 
emulation and ambition ; and when the contest comes to be 
waged amidst fifty millions of people ! Feed ourselves with 
false and delusive hopes as we may, the stoutest heart must 
shrink appalled at the prospect. 

Ko. V. 

I shall now call your attention to another of Mr. Clay's politi- 
cal pictures, taken from his Hanover speech. After stating 
that, in his deliberate opinion, "the present distresses and dis- 
tracted state of the country may be traced to the single cause 
of the action, the encroachments, and the usurpations of the 
Executive branch of the Government," he reviews what he 
terms "this stupendous structure of Executive machiner}- and 
despotism, which has been reared in our young Republic," 
and then proceeds, thus : 

" The sum of the whole is, that there is T)ut one power, one 
control, one will in the State. All is concentrated in the Pre- 
sident. He directs, orders, commands the whole machinery 
of the State. He executes, according to his pleasure or caprice, 
the whole powers of the Commonwealth, which have been ab- 
sorbed and engrossed by him. One sole will predominates in 
and commands this vast community. If this be not practical 
despotism, I am incapable of conceiving or defining it. The 
existence or non-existence of arbitrary Government does not 
depend upon the title or denomination bestowed on the chief 
of a State, but upon the quantum of power he possesses or 
wields. 

"I have thus, fellow-citizens, exhibited to you a trne and 
faithful picture of Executive power, as it has been enlarged 
and expanded within the last few j'ears, and it lias been pro- 
posed farther to extend it. It overshadows every other braneh 
of the Government. The source of Legislative power is no 



452 LETTERS ON THE PRESIDENCY. 

longer to be found in the Capitol, but in tbe palace of the Pre- 
sident. How is it possible for public liberty to be preserved, 
and the Constitutional distributions of power among the de- 
partments maintained, unless the Executive career be checked 
and restrained." 

Truly, sir, this is a most gloomy picture. You yourself have 
drawn several such during the late canvass. Some allowance 
is no doubt to be made for extra coloring, on account of the 
time and occasion. But it is to be hoped and believed that 
neither of you would be capable of so solemnly presenting it 
to the nation, unless you sincerely believed it was substantially 
a true picture. For myself, I adopt the whole of it, coloring 
and all. It is not too highly colored for my opinion. But 
what I want to ask you and Mr. Clay, and in behalf of the 
nation to call for a response, is. How or whence did this des- 
potism come upon us ? You say it is not in the Constitution, 
nor to be traced to that as its source. Whence, then, came it? 
Mr. Clay's general declamation, about absorptions and en- 
croachments, is well enough for the hustings, but won 't do 
for sober chat in the closet. We want facts. We want you 
to point out distinctly wherein and when did General Jackson 
or Mr. Van Buren ever transcend the limits of the Constitu- 
tion, or usurp a power not clearly and expressly assigned to 
the Executive. To many of 3^our party it will seem very pre- 
sumptuous, but to you it will wear no such aspect, that T 
should, as I do, defy either of you to produce the instance. 

You will not cite the power of removal from office, for that 
is a debatable question ; and, as you admit in your Richmond 
speech, they found it a settled practice of the Government, 
established with the assent of the first Congress that set under 
the Constitution, and with the full sanction of Mr. Madison, 
who ought to have known better than any other man what the 
Constitution meant. You will not cite the removal of the de- 
posits; for, sift that subject as you may, even pervert it with 
all your ingenuity, and the most you can make of it is a gross 
abuse of an undoubted power. You will not cite certain as- 
sumptions of General Jackson, never acted on ; for he and they 
have had their day, and as mere opinions they will have neither 
weight nor authority with any one. Even his successor, his 



LETTERS ON THE PRESIDENCY. 458 

promise concerning the "foot-steps" to tlie contrary notwith- 
standing, never would hazard hi.s reputation as a Constitutional 
lawyer hy adojtting or avowing them. My remembrance .sup- 
plies no instance one whit more plausibly in your favor than 
either of these. I^o such instance can be produced. Even 
all the distinctly tangible abuses of power, it will be found, on 
a candid re\dsion, are circumscribable wdthin those two sub- 
jects, the removal of the deposits and the removing and ap- 
pointing of officers. 

We have, then, all this absorption of power by the Execu- 
tive, without a single usurpation or a tangible instance of even 
encroachment. IIow, then, has it come about ? That is what 
we want a response to. Will you retort upon me the question, 
how then do I admit the truth of Mr. Clay's picture ? How, 
if there has been no usuq^ation, nor even any abuse of power, 
but such as may be circumscribed within such narrow limits, 
how is it that the President possesses such " stupendous over- 
shadowing power?" I shall attempt no escape from the ques- 
tion, by affirming that the dilemma is not mine, but yours and 
his who did the painting, for that is the very point to which I 
wish to bring the inquiry. It presents the only true question 
for consideration in the investigation of this great subject. 
But it is one to which neither you nor Mr. Clay, nor any other 
prominent man, has ever yet responded. You have all so unac- 
countably overlooked it as to warrant the surmise that you had 
purposely avoided it ; but why or wherefore I know not. M}' 
own response to the question will be readily anticipated from 
the tenor of previous remarks. It is believed to be susceptible 
of none other even approaching to plausibility. All the excess 
of his powers, above those granted him by the Constitution, 
are precisely those, and none other, that naturally and neces- 
sarily devolve on him, as the head of the great politicid party 
that elevated him to the chair ; the unavoidable inference being 
that there lies the true source of all the power complained of. 

This is a power wholly extraneous from the Constitution. 
It is a power which its framers not only never intended to give, 
but which, as they supposed, could never come by accession 
or accretion; for, as they believed, they had most carefully and 
securely guarded against it ; a power not even rcmotvly inci- 



454 LETTERS ON THE PRESIDENCY. 

dental to tlie scheme of Government, as its projectors intended 
it should work in practice. Let us, then, cease to wonder how 
it is that an officer under the Constitution, acting within the 
pale of his assigned powers, has acquired a power above the 
Constitution that actually controls and nullifies it; that kicks 
aside its whole frame-work of checks and balances ; concen- 
trates all Legislative and Executive power in his own hands ; 
and reduces the Government to that simple machine, as you 
have termed it, an elective despotism. 

It is unnecessary to tell you, but it may not be amiss to re- 
mind others, that this peculiar and extraordinary power is not 
of modern growth. It lay in the hands of all our party Presi- 
dents, and was more or less exercised by them all. It was only 
more glaringly developed and displayed whilst in the hands 
of General Jackson, because of the peculiar and unusual 
mode of its exercise by him. Mr. Jefferson and Mr. Madison 
treated their party and its interests as a sort of family concern, 
to be managed by mutual consultation between them and its 
leaders, in and out of Congress. The interests of the country, 
it is to be hoped, were always the first consideration ; but the 
interests of the party were never overlooked, and were carefully 
attended to as a thing in which they all had a mutual interest, 
and in the successful operations of which they all had a stake, 
more or less, of personal reputation. Mr. Jefferson, by the force 
of his great talents, great personal popularity, and by his still 
greater tact in the management of men, did just as he pleased, 
without seeming to do so, and was more truly the Government, 
and the whole Government, than ever General Jackson was. The 
difference was in the mode of exercising the power. The one 
did it with the polished courtesy of a gentleman, and with 
that nice address of the accomplished statesman, which made 
the party leaders in Congress actually fancy that it was they, 
and not he, who were exercisi ug the power. The other did it 
with the sic volo sic jubeo of the peremptory soldier. To the 
one, the party was a foster-child of his own, and he treated it 
with nursing parental care ; and though he was occasionally a 
most severe task-master over it, yet they seemed to move in 
concert and acted with apparent harmony. The other never 
belonged to the party till he was placed at its head, resented 



LETTERS ON THE PRESIDENCY. 4 ;>a 

its pretensions as injurious to the imputed sufficiency of his 
own popularity, cared nothing ahout it except so far as it suh- 
served his purposes, and was ready at any moment to kick it 
to perdition whenever it shoukl cease to do so. Ilcnce Ids 
movements were never in concert or upon consuUation with 
his party, but always in advance of it. Caring notliing for 
his party, his course was reckless of its interests, and his career 
always wore the appearance of dragging the unwilling party 
at his triumphant heels. His language was, follow me, or we 
may all go to ruin together, for aught that I care. With them 
the party was everything. The political existence of each and 
all of them depended upon saving the party ; to save the party, 
they were compelled to follow and sustain him. There was 
no period, during the terms of Jeiicrson and Madison, when 
the party would not have been compelled to do the same thing 
if they had ever thought proper to pursue the same course. 
Besides, all General Jackson's hobbies were popular with the 
great mass of the people. He did not make them so ; tliey 
were so before he mounted them. "We have just witnessed 
what the force of his popularity is, when unaided by party 
power, even in his own State. What would liave been the 
result, if he had ever happened to run athwart popular preju- 
dice, is uncertain. His party in Congress might, in such case, 
have ventured to take heart and grapple with him. But that 
is doubtful. It is difficult to bring about the mutual confidence 
among one hundred and fifty men necessary to such an effort. 
The likelihood is rather that they would in that, as they will 
in all other cases, follow on and risk the chances befoi'c the 
people. 

General Jackson never displayed, in anything he ever diil, 
near the same amount of power as was manifested l>y Mr. 
Jefferson in the infliction of the embargo and other anti-com- 
mercial measures upon an unwilling nation. There could be 
no higher manifestations of the despotism of party than tlie 
peaceable endurance of such a course of measures in a jtopu- 
lar Government like ours. With our present lights, calndj* 
reviewing the folly and injurious eftects of many of his meas- 
ures, nothing can more strikingly illustrate the impropriety 
of trusting absolute legislative power to any one mnti. Yet 



456 LETTERS ON THE PRESIDENCY, 

Jefferson was a great man, perhaps tlie greatest, save one, that 
the nation has ever yet produced. His own peculiar bias in 
politics, that he gave to and impressed upon our institutions, 
will, for good or for evil, be as durable as themselves. But he 
had, in an eminent degree, a fault common to most great men, — 
that is, too much confidence in his own opinion. He was a 
bold, not to say reckless, theorizer and experimenter. Such 
men are always dangerous, and the last to be trusted with 
absolute sway. One of his theories was, that a nation like 
this, for a fancied ultimate benefit, could, by legislation, be 
driven or weaned from its great commercial pursuits. His ex- 
periments upon that idea cost the nation an infinitude of mis- 
chief. They were carried through by the force of party drill 
alone. A somewhat similar experiment under General Jack- 
son, based on a similar idea, has cost the nation nearly as much. 
The great inexcusable error of both experiments was in the 
application of severe and costly remedies, without knowing 
certainly beforehand that the patient would submit to treat- 
ment, and take the whole prescription. These two similar 
mischiefs, proceeding from two dissimilar men, should incul- 
cate the lesson, if we needed it, that neither the excess of 
wisdom nor the want of it afford any security against the evils 
of obstinacy and opinionativeness, in men holding absolute 
power. 

Mr. Jefferson thoroughly understood the true principles of 
the Government, and it was his pride, as he felt it to be his 
duty also, to preserve them in their purity. He, therefore, 
never violated the Constitution either in its letter or spirit. It 
Avas General Jackson's misfortune that he did not understand 
those principles. From his education and previous pursuits, 
it would be unreasonable to expect that he should have under- 
stood them. Under the influence of his peculiar temperament, 
he was, therefore, habitually trampling over the spirit of the 
Constitution, and treading upon the outermost verge of his 
powers. Whether, if he had understood those principles, he 
would have wilfully disregarded them, must ever remain a 
matter of some doubt. No man doubts his patriotism ; no 
man doubts that he was always ready to lay down his life for 
his country. The doubt is, whether he did not lack that moral 



LETTERS ON THE PRESIDENCY. 457 

training wliicli teaches other men a proper reverence for our 
jiolitical institutions, and makes them view every violation of 
the Constitution as a great moral wrong. 

Mr. Jetierson, from the consciousness of his own powers, 
feared not to encounter other great men, but courted their so- 
ciety and always kept them about him. General Jackson, from 
a different sort of consciousness, pursued a different course. 
When he had been sometime in the chair, the nation was 
startled with the intelligence, that he never held any Cabinet 
councils. He even threatened to dispense with the aid of 
Cabinet ministers, and cany on the Government with chief 
clerks. In the absence of the appropriate Constitutional ad- 
visers, the world did him the injustice to believe that he had 
submitted himself to the guidance of others of a very different 
description. The opinions of the one, though entitled to great 
weight with everybody, yet received more consideration than 
they deserved, from the additional respect attached to them on 
account of the supposed concurrence of his very able Cabinet. 
General Jackson's opinions, though entitled to little authority 
with any one, except on military subjects, received less respect 
than they really merited, on account of the falsely imputed 
influence to which they were ascribed. 

These various points of striking contrast between these two 
most remarkable men serve fully to explain why the same more 
extensive and more frequently used powers assumed a so much 
less obnoxious shape, whilst in the hands of the one, than they 
afterward assumed when in the hands of the other. They 
explain why it was left for General Jackson to expose in its 
nakedness the astounding fact, that our system gives us a pub- 
lic master, instead of a public serv^ant, in every party Presi- 
dent, — a fact that seems, therefore, to have lurked comparatively 
unobserved in our system. 

I say comparatively unobsen'ed, for from the celebrated 
report made to the Senate in 1826, by Mr. Van Buren, Mr. 
Benton, and other distinguished members of the present party 
in power, those gentlemen appear before that to have had a 
distinct perception of something very like it, as will be seen 
by the following extract from that report : 

"Patronage will penetrate this body, subdue its capacity of 
58 



458 LETTERS ON THE PRESIDENCY. 

resistance, chain it to the car of power, and enable the President 
to rule as easily and much more securely with than without the nomi- 
nal check of the Senate. 

" We must look forward to the time, when the nomination 
by the President can carry any man through the Senate, and 
his recommendation can carry any measure through the two 
Houses of Congress; when the principle of public action will 
be open and avowed, — the President wants my vote, and I want 
his patronage ; I will vote as he wishes, and he will give me 
the office I wish for. What will this be but the government 
of one man ? and what is the government of one man but a 
monarchy ? Names are nothing. The nature of a thing is 
in its substance, and the name soon accommodates itself to 
the substance. 

" Those who make the President must support him. Their po- 
litical fate becomes identified, and they must stand or fall together. 
Might or wrong they must support him." 

If my recollection serves me, Mr. Calhoun, as chairman of 
a committee, a majority of whom were distinguished members 
of your own party, in 1835, made a report to the Senate con- 
taining very similar sentiments. 

The time having already arrived, when the President carries 
any nomination through the Senate, and any measure he pleases 
through the two Houses of Congress, we have now the ex- 
pressed opinions of the most prominent men of all parties, 
that somehow we have wandered from a theoretical Republic 
into a practical despotism ; yet, strange to say, no man of you 
all seems to have spent a serious thought upon how we got 
there, so as to point the way back again. It is well worthy 
of wonder that with such concurring opinions, from so many 
eminent men, no one has yet seriously set to work to procure 
such an amendment of the Constitution, as shall rid us of this 
elective despotism. 

We have, furthermore, in this report of 1826, from such men 
as Mr. Van Buren and Mr. Benton, men who have spent their 
lives in the exercise of party tactics, and the pursuit of politi- 
cal warfare, men thoroughly versed in all the phases of human 
nature when under the influence of partyism, the annunciation 
of the all-important fact, that they who make the President 



LETTERS ON THE PRESIDENCY. 459 

must and will support him, right or wrong, because their po- 
litical fates are identified, and they must stand or fall together. 
Yet, whilst denouncing the excess of Executive power, and in 
the anxious pursuit of some remedy that will diminish it, with 
this important fact glaring them full in the face, they take hut 
little note of it, make no comment upon that which so ob- 
viously unites the political fates of the President and members 
of Congress, and make no suggestion of the necessity for doing 
something to disunite them. 

Both the reports, as well as all the more modern speeches, 
are principally made up of perpetual harping upon the extent 
of the President's patronage, with the power and corrupting 
influence it was supposed to give him over Congress ; all over- 
looked that greater and stronger ligament, which binds the 
Representative to the President — their community of interest 
and identity of political fate, and that still stronger one, party 
spirit. 

The first care, the great solicitude of the Representative is 
to preserve his seat. He has generally passed through a severe 
and costly struggle to obtain it; he has no disposition to lose 
it, and his greatest anxiety is its retention. He finds himself 
with two masters, — the President, as head of the party, and the 
party at home, who elected him. Of the two masters, that at 
home is much the more dreaded. To please both, he has 
nothing to do but to perform the easy task of obeying the Pre- 
sident ; whilst to disobey him, is to displease both. He has 
rivals at home, even of his own party. He knows that the 
party at home has more confidence in the President than it has 
in him, and that it feels vastly more solicitude about the Presi- 
dent's political fate than it does for his. 

In the one scale is to be poised sympathy for his peculiar 
individual interests, against the interest of the whole home 
party placed in the other. It is not diflicult for him to deter- 
mine which scale is most apt to kick the beam. If he obeys 
the President, he is almost certain of forgiveness, if not of 
applause ; whilst if he disobey, it is a rare chance if he does 
not lose his seat. His own office of Representative, both for 
emolument and importance, is worth more to him than most 
of those within the gift of the President. Here, then, is mo- 



460 LETTERS ON THE PRESIDENCY. 

tive amply sufficient, to make liim a faithful and subservient 
follower, to say notliing of that great principle of cohesion, 
party spirit, without his ever turning his regard toward the 
palace in the hope of higher office. A few small crumbs dropped 
in his way, for the satisfaction of greedy friends at home, 
generally content him. In truth, much the larger number of 
those who constitute an Administration majority in Congress 
never expect, or even hope for higher office, and among them 
are to be always found the most faithful of the faithful. For 
it is a fact, standing broadly out, in disproof of all theorizing, 
as to the excess of Presidential patronage, that for every de- 
sertion which can be named out of that larger body who never 
look for any of the higher offices, five or more can be named 
from the less numerous class, who have pretensions to those 
offices and do look for them. Nor should tliis be at all won- 
dered at, for the more numerous and humbler class receive no 
personal slight from the Executive, and have nothing of that 
sort to revenge ; whereas, if things were narrowly looked into, 
that cause alone would be found to produce more desertions 
than all others. 

The Governors of the different States have generally pretty 
much the same patronage, on a smaller scale, that the Presi- 
dent has; yet, with the exception of the two large States, 
where the patronage is sufficient to induce the, formation of 
parties for obtaining it, we hear of no complaint whatever of 
Executive encroachment upon legislative power. The com- 
plaint is all the other way. The Legislatures are perpetually 
encroaching upon the Executives; and it is generally found in 
practice that the Governors have too little, rather than too 
much, influence with the Legislatures. 

Take the case of the younger Adams. He enjoyed the same 
patronage as General Jackson and Mr. Yan Buren, and it would 
be paying him a most ridiculously extravagant compliment not 
to suppose him equally inclined to use it ; yet he had neither 
power nor influence over Congress. His only influence was to 
procure the defeat of everything that the opposition suj^posed 
he desired. The reason of this was that he had not been elected 
by a party, and he could not combine a party organization 
strong enough to sustain him. The moment he was elected 



LETTERS ON THE PRESIDENCY. 461 

lie was found to be in a minority in both Houses. Hence the 
rapidity ^vith which a predominant party was formed against 
him, and the facility with wliich he was turned out. 

N'ot to prolong the discussion unnecessarily by any further 
illustrations, it may be closed here with assuming the just 
inference to be, what everything tends to prove, that all the 
exorbitant powers of the President, so heavily complained of, 
are purely and solely the result of the mode of his election. 
This conceded, the other inference necessarily follows, that the 
only way to get rid of this excess of power is to get rid of the 
mode of his election. 

So far as I recollect, Mr. Clay is the only prominent man of 
your party who has indicated any specific remedies for this 
excess of power. They are to be found in his Hanover speech, 
and in the programme there laid down of the duties of Con- 
gress under the coming Administration of General Harrison.* 
He says, the great constitutional machine "has been so jarred 
and jolted, that it needs careful examination and thorough 
repair ; " that the first and greatest of those duties will be " the 
circumscribing of Executive power, and throwing round it such 
safeguards and limitations as will no longer render it dangerous 
to public liberty." To this end he proposes : 

First, to reduce the Presidential otfice to a single term ; 
second, to reduce his veto power ; third, to restrict the power 
of dismission from ofiice by bringing it under responsibility; 
fourth, to put the Treasury more exclusively under the control 
of Congress ; fifth, to prohibit the appointment of members of 
Congi-ess to any but a few specified ofi&ces. 

The two first of these amendments are such as the scheme 
I shall suggest will also require ; and I am glad, therefore, to 
find that I shall have the high authority of his opinion in favor 
of that much of it. But I am at a loss to appreciate the ten- 
dency they will have, under the present system, to reduce Execu- 
tive power in the manner he desires. An ineligible despot 
of four years' duration is no more proper or like what our Gov- 
ernment was intended to be, than a despot that is re-eligible. 
The power is in the ofiice, and it is just as plenary for four 
years' duration as if it were for eight. Unless the powers of 
the office are decreased, instead of making the contests for it 



462 LETTERS ON THE PRESIDENCY. 

more frequent, true policy requires that tliey should be made 
less so ; and, if it is reduced to one term, that term should be 
extended to ten or fifteen years. It is the excess of the power 
of the office against which all complaint is made ; and that 
excess is what Mr. Clay himself seems to desire to curtail. I 
do not perceive how the reducing it to one term can have any 
effect toward doing it. It may serve in some degree to take 
from an incumbent one inducement for the abuse of power, and 
to that extent has merit ; but it in no degree tends to curtail 
his power. Such is not the theory of our Government. It 
trusts absolute power to no one man, for no length of time, and 
for no purpose. It nowhere acts upon the unwise principle of 
trusting to the absence of motive in an officer to do wrong. It 
everywhere goes on the contrary principle — of supposing he 
may and will do wrong, and therefore of keeping him under 
Testraint. The whole result to be attained by such an amend- 
ment is so very small, even when viewed as an operation upon 
human motives, that it is intrinsically worth but little. It is 
in vain to take away the motive of personal self-interest, while 
you leave the bad passions of party spirit, envy, personal and 
political hate and affection, to influence an incumbent to use 
his power to secure the election of a successor, of his own 
party, and even of his own selection from that party. Do you 
suppose that General Jackson felt any less solicitude for the 
first election of Mr. Yan Buren than he had done for his own 
re-election ? 

The reduction of the veto power may be proper under any 
system, but it is believed to be among the least pernicious of 
his excessive powers. It is only negative, and its only effect 
is to leave things as they were for the balance of the President's 
term. Its worst mode of exercise can threaten neither liberty 
nor permanent national interests. 

The responsibility Mr. Clay seems to desire to have the 
removing power brought under, is barely requiring the Presi- 
dent to report removals to the Senate, together with his reasons 
for making them. I entertain no doubt that the power to require 
this to be done already exists in Congress, and that a pertina- 
cious refusal, on the demand of either House, to give his reasons 
for removals, would be fair and legitimate ground for impeach- 



LETTERS ON THE PRESIDENCY. 463 

ment. There is no amendment of the Constitution needed to 
eiFect that object. But, when attained by an act of Congress, I do 
not see how it will materiall}- curtail the powers of the office. 
The supposed responsibility to which it would subject the exer- 
cise of the power is, in truth, no responsibility at all. Accord- 
ing to the opinion of Mr. Van Buren and Mr. Benton, as ex- 
pressed in the report of 1826, it is even worse or less than none 
at all. If, as they say (and you and Mr. Clay no doubt concur 
in the opinion), the power of the President subdues the capacity 
of resistance on the part of the Senate, and enables him to rule 
as easily and more securely with than without the nominal 
check of the Senate, — then, also, he would, with equal ease and 
more security, exercise the power of removal after it was referred 
to that body to control its exercise. Public opinion does our 
Senators great injustice, if they are not about the most hungry 
of the hungry office-seekers. They will be the most apt of all 
others to always do as they did with General Jackson, to urge 
upon every new President the removal of incumbents. Rea- 
sons for the act will be found " as plenty as blackberries," even 
when to be rendered upon compulsion. This serves but as 
another illustration of the great radical error of the present sys- 
tem of electing our Presidents. It communicates to them such 
excess of power, that all the other departments furnish not the 
means for the lodgment of adequate powers of check and 
control. 

That the Treasurer of the ITnited States should be elected 
by the House of Representatives, and not appointed by the 
President, seems to admit of little doubt. It is even requisite 
to the perfection of the whole theory of the Constitution. Such 
is the plan in Kentucky, and we find it to work well. But 
such an arrangement, though important in other respects, would 
abstract only a veiy trivial something from the power or patron- 
age of the President. His office could never be other than a 
comparatively very inferior one with a small salary. When 
banks are employed as fiscal agents, his duties would ho light 
and trivial ; and there could be no patronage attached to his 
office and abstracted from the President. 

If, among the specified offices which should be excepted from 
the prohibition against the appointment of members, Mr. Clay 



464 LETTERS ON THE PRESIDENCY. 

intends to except, as he probably does, heads of departments 
and foreign ministers, the reduction of the power growing out 
of the President's patronage, produced by his amendment, 
would be but little. If he does not mean to except those 
higher offices, then his amendment is liable to very serious 
objection. The halls of Congress affi^rd the only school we 
have for the training of national statesmen. The reason should 
be great, and the end to be attained of the most indubitable 
success, before we consent to deprive ourselves of the benefits 
of such a school toward procuring competent men for filling 
those higher offices. If they are to be excepted, then the 
whole amendment had as well be let alone. It is principally 
by means of those offices that so much of the President's 
power, as results from patronage, is exerted over his party in 
Congress. Through them he influences, if he so influences at 
all, the leaders and more prominent members of the party. 
"With the humbler and larger mass, the gift of offices and lucra- 
tive jobs to relatives and friends is equally efficacious as their 
bestowal directly upon the members themselves. In fact, this 
is generally the most acceptable, as it is also the most accus- 
tomed mode of receiving pay for partisan services in Congress. 

But, with due deference, is not the whole scheme of these 
proposed amendments a too paltry tinkering with a mighty 
subject? 

The scheme totally overlooks the fact, which is also over- 
looked by the complainers against the President's power of 
patronage, that the great adhesive principle in our national 
parties, so far as it depends upon the lust for obtaining and 
retaining office, lies not the tenth part of it in the patronage 
of the President, but in those multitudinous State, city, town, 
county offices and jobs, which, equally with those in his gift, 
constitute the whole trading capital of the party, or, if you 
will, the spoils to be retained, or the spoils to be lost, in the 
contests between our great national parties. Here it is that 
lie the deep and broad foundations of the power of national 
parties, so far as they rest on pecuniary interests. From this 
great spring-head, or rather from these ten thousand spring- 
heads, flows the great stream of Presidential power, if indeed 
it do flow from patronage. These are the sources of power 



LETTERS ON THE PRESIDENCY. 465 

that jou must choke up, or divert so as to prevent their flow- 
ing in to swell the other powers of the President, before you 
can do anything effective toward curtailing his power. 

Upon a more considerate review of the whole subject, I have 
no doubt that both you and Mr. Clay will readily admit that 
these proj)osed amendments of his are totally inadequate to 
the object in view; and that, with his " long, broad, sharp knife 
of reform," he can display much more skilful surgery upon 
the Constitution than this. You both stand pledged, and have 
pledged your triumphant party to it, that something shall be 
done under the new Administration to redeem the country 
from a Presidential despotism. Let that something be worthy 
of the great subject, worthy of yourselves, and worthy of the 
recent most flattering manifestation of popular trust and con- 
fidence. 

I shall endeavor hereafter to show that this evil of the ex- 
cess of Presidential power, great as it is, is only among the 
least of the evils attendant upon the present mode of electing 
our Presidents. 

No. VI. 

The great, perhaps the greatest, evil attendant upon our sys- 
tem of electing Presidents, is its corrupting influence on the 
whole body of the people. 

"We are an office-loving, an office-seeking people. The pas- 
sion may not be peculiar to us, it may be common to every 
other people ; but we certainly have it in a high degree. Let 
us attend to the extensive means of our corruption through 
this one passion alone. Look at the host of offices and public 
employments properly belonging to the Federal Government ; 
and recollect that each of them is sufficient to sustain the hopes 
and excite the active exertions of at least fifty men, whilst they 
actually serve to stimulate the exertions of incumbents with 
as many more of the friends and relatives of each of them, to 
keep the expectants out. But this is not the tithe of this 
means of corruption, or of this sort of stimulant to party strife 
and political cabals. It is a law of such strifes that two dis- 
tinct motives to political excitement cannot well operate upon 
the bod}' of the people at one and the same time. The greater 
59 



466 LETTERS ON THE PRESIDENCY. 

always swallows up and hides tlie less. When the nation is 
once thoroughly roused to a Presidential contest, all other 
questions fade into comparative insignificance. State parties 
and politics cease to exist, almost in name. We once had in 
Kentucky, during an interval of Presidential contests, as fierce 
a party warfare as ever was waged, between what at first were 
termed Eelief and Anti-Eelief, and afterward the Old-Court 
and New-Court parties. Every man in the State was of the 
one or the other of those parties ; and, after the contest had 
heen carried on long enough to make them as inveterate toward 
each other as two parties could well be, the final contest be- 
tween General Jackson and Mr. Adams ensued, and they were 
both immediately absorbed in the great national parties that 
rose out of that contest, and have never since been heard of. 
The New-Court party, almost to a man, was wheeled by its 
leaders into the ranks of Jackson, and, of course, with nearly 
equal unanimity, the Old-Court party was wheeled by its 
leaders into the ranks of Adams ; and there the mass of both 
have ever since remained, taking the bias of their national 
politics, for the last twelve years, from the accident of their 
being so arranged by the personal predilections of the leaders 
under whom they had waged the war about State politics. 
With us, as everywhere else throughout the Union, from that 
time to this, the qualifications and fitness of applicants for seats 
in the State Legislature, the two Houses of Congress, the Gu- 
bernatorial chairs, seats on the bench, and for every other State 
office, down to the lowest, has been and is everywhere tested 
by the one universal standard of the applicant's predilections 
for the aspirants to the Presidency. City, town, county, and 
corporation ofiices and employments are all bestowed in the 
same way. 

This incalculable number of ofiices and employments, with 
those properly belonging to the National Government, consti- 
tute together, in mass, the estate in possession or expectancy 
of one or the other of the great Presidential parties, affording 
the exhaustless means and inducement to political excitement 
and corruption. When properly considered, and minutely 
looked into, what an awful, what an appalling mass of means 
they are ! Did any country ever possess them to the same 



LETTERS ON THE PRESIDENCY. 467 

extent ? Wliat people does or ever did possess the virtue to 
withstand tlicni ? What was the boasted system of espionage 
of Bonaparte, what were his million of armed police worth, 
for sustaining a military despotism, in comparison to all this 
well-trained, universally disseminated corps of office-holders, 
for sustaining the despotism of party ? Consider this, sir, as 
it deserves, and you need never again feel the wonder ex- 
pressed in your speech at Richmond, that in a free elective 
Republic like ours it should cost so much excitement, such 
a mighty efibrt on the part of the nation to change its rulers, 
even when a large majority desires to do so. 

With short intervals of calm, this universal degrading 
scramble after office must keep the public mind under per- 
petual excitement, until everything valuable in our institutions 
is lost sight of or wilfully trampled in the dust. "We have 
already passed from the dirty arts of low electioneering to 
open bribery; the American voter already shamelessly avows 
the sale of his vote ; and the American citizen already shame- 
lessly avows the purchase of votes. You have recently heard 
the great outcry at the detection of certain fraudulent prac- 
tices upon the elections in New York and Philadelphia. We 
in the west wonder much at that outcry, and ask whether it 
can be serious. Whether those who got it up against each 
other w^ere not all the time laughing in each other's faces. 
We wonder whether it can be possible that we have so far got 
the start of our eastern brethren in corruption. Why, sir, 
those very practices are in notorious habitual use among ns, 
and have been so for years back, until, at last, in alleged self- 
defence, men of the first standing among us for intelligence, 
property, and character, have become openly engaged in them, — 
men, too, who are no seekers of office, want no office, are 
almost above office, and who are thus stimulated to defiling 
the institutions of their country by no other motive than that 
of party spirit. We need not look forward to what may ensue 
hereafter. I tell you, sir, the public morals on this subject are 
already gone, utterly gone; and gone without the hope of 
redemption or resurrection, unless the baleful spirit of partyism 
can be speedily quelled among us. What you say is literally 
true, — the received creed of the day is, that everything is fair 



468 LETTERS ON THE PRESIDENCY. 

in politics. "Witness not only the open undisguised buying 
and selling of votes, the notorious colonizing of illegal voters 
by the hundred, the suppression of poll-books and returns, 
but even the fabrication of the records of our courts of jus- 
tice. 

Much of the debasement of public morals, as exhibited in 
election frauds, may be traced to the action of Congress and 
other representative bodies. The prices paid to obtain seats 
in the House of Representatives have been at the bottom of 
much of it ; the example set there has been the occasion of 
as much more. Take the contested election cases before that 
House, from that of Letcher and Moore down to the New 
Jersey case of last winter, all disposed of, incidental questions 
and all, by a strict party vote, and to the general mind the 
grossest fraud and misconduct of election officers upheld by 
the unanimous vote, first of the one and then of the other of 
the parties there. Yet, in all such cases, the members are pre- 
sumed to act in the cUaracter and ought to act with the im- 
partiality of judges. 

The mention of the case of Letcher and Moore reminds 
of an incident which then took place, as credibly related to 
me, that exemplifies something of the force of party drill and 
discipline. A member, of matured years, great personal popu- 
larity, and high standing and influence with his party, felt so 
much solicitude for Letcher's success, from his conviction of 
the superior justice of his claim to the seat, that he sat at the 
clerk's table anxiously noting the vote as it progressed, and 
ever and anon, as it seemed to preponderate in Letcher's favor, 
he audibly exclaimed, " thank God, justice vnW be done ; " yet 
he himself voted against Letcher. Orders had gone forth to 
the party that Moore must be sustained, and the member dare 
not disobey, though his conscience and his personal inclina- 
tions prompted him so strongly to it. Even though the story 
be not true, yet, coming from the source it does, it serves to 
show the opinions members entertain of the political integrity 
of each other. 

Take the case of the Maryland electors of the Senate, per- 
petrating an open act of treason against the institutions of their 
State for a party advantage, and censured or blamed, through- 



LETTERS ON THE PRESIDENCY. 469 

out the country, just as the censor or approver happened to he 
or not to he of the politics of those who committed the 
treason. 

Take the case of the Pennsylvania Legislature, so far coun- 
tenancing a most infamous fraud as to warrant the suspicion 
that, hut for the intervention of a lawless and treasonable 
mob, they would have availed themselves of the fraud to en- 
gross the patronage of the Legislature in favor of their party. 
Was not the conduct of the two parties on that occasion, as it 
was also in the I^ew Jersey case of last session, tantamount to 
saying to each other, we know you to he so unprincipled that 
we cannot trust you temporarily with power, because you will 
hold it permanently, right or wrong, to promote a party advan- 
tage. If such be their opinions of each other, what are the 
people to think? With such examples before us as the 
results of party excesses among the high officials of the land, 
there is no need for wonder at the rapid spread of election 
frauds among the people. 

You are aware of the high claims of Mr. Butler, the late 
Attorney-general of the United States, to intelligence, infor- 
mation, and integrity of character. It has so happened that 
this distinguished gentleman has recently been placed in a 
situation requiring him, as he supposed, to express his i)pinion 
as to the probable result of these election frauds, under all the 
solemnities and sanctions of an oath. He thus gives that 
opinion : " If the frauds in elections, which of late years have 
become so common, are not detected and stopped, our system 
of Government will be overthrown, and the morals and liber- 
ties of the people destroyed." This sort of language, together 
with this sort of evil foreboding, in which so many eminent 
men concur, is echoed in the language and sympathized by 
the feelings of nearly all men of intelligence and matured 
judgment throughout the country. The language is daily 
becoming more common to every lip, and the feeling more 
familiar to every breast. The wide dissemination of such 
opinions and feelings can be owing to no trivial cause. Has it 
not become high time for our more distinguished statesmen 
to set about searching for and applying some radical remedy, 



470 LETTERS ON TUE PRESIDENCY. 

to endeavor, at least, to remove tlie great stimulants to all 
these frauds ? 

Mr. Butler is too well informed not to know that history 
affords no warrant for believing that the march of popular 
corruption ever subsides or recedes of itself; that frauds in 
elections are never a diminishing but always an increasing 
evil in republics. He is too much of a practical lawyer and 
man of the world not to know that frauds on elections, during; 
high party times, are of that class of offences which are not 
under the correction, but above the control of the law. They 
have proved themselves to be so for the last century and a half 
in England, as they have thus far uniformly done in our own 
country. So long as the criminal law is administered through 
the intervention of grand and petit jurors, this must forever 
continue to be the case. They are like other men, and fully 
imbued with the passions and party prejudices of all their 
neighbors. The passions and prejudices that make them 
uphold and countenance election frauds, as citizens, will make 
them wink at or refuse to punish them, as jurors. They have, 
besides, a reason of plausible justice for refusing to punish 
such offences. The number of offenders are known to be so 
great, that it can rarely happen that those prosecuted are not 
so few, in comparison to the whole, that their punishment will 
not wear the aspect of persecution and partiality. Besides, 
the jurors of the political party of the accused can never know 
that other jurors will be impartial, and enforce the law against 
delinquents of the opposite party. Experience has already 
proved here, as it did long ago in England, that it is in vain 
to pile statute upon statute, or penalty upon penalty, for the 
punishment of election frauds. Light penalties are scoffed at, 
and heavier ones can never be enforced. The heavier they are 
the less chance there is of enforcing them. The attempts to 
do so serve but to degrade the law, by exposing its impotency. 
As long as public sentiment remains vitiated or deadened on 
the subject, the crime must remain "unwhipped of justice." 
The contest for a seat in our State Legislature has already 
been known to cost the candidates and their friends seven or 
eight thousand, dollars. In many parts of the Union, that 
would be a moderate outlay upon a warmly contested seat in 



LETTERS ON THE PRESIDENCY. 471 

Congress. An election for a scat in Parliament for tlic city 
of Liverpool is known to have cost the enormous sum of eighty 
thousand pounds sterling. The recent election in the city of 
'New York has probahly cost little less. The late Presidential 
election is estimated to have cost the two parties, in money, 
loss of time, and otherwise, many millions of dollars. The 
great convention at Baltimore, alone, is computed to have cost 
near a million. 

How are we to escape that heavy calamity, which, in Mr 
Butler's opinion, threatens to overtake us so certainly and so 
speedily? How is it to be done, but by removing the great 
leading cause of the debasement of public morals ? How can 
public sentiment be purified and restored to a proper tone, but 
by taking away the great cause of all these popular excitements, 
and removing the great stimulant to these ever-recurring and 
corrupting party contests ? If the corruption among the people 
and among the officers who conduct and decide upon elections 
be such as we now see, each new example furnishing a prece- 
dent for a new excess, w^hat must it all come to before the recur- 
rence of many more contests for the Presidency? "With the 
ever-increasing stimulants to increased excitements and excess, 
when we shall have doubled our present population, it will be 
impossible for our frame of Government to withstand the tre- 
mendous concussions that will be produced by the death-strug- 
gles between the outs and the ins. A fraud practiced on a 
Presidential election, like that of the New Jersey case, or that 
of Pennsylvania, giving the chair to one candidate by the forms 
of law, whilst the other had received a majority of the votes, 
. would, if happening even in our own time, at once drive the 
nation to disunion or civil war. 

"Whenever such a crisis arrives, whenever such a calamity 
shall impend the nation, little calculation can be made, little 
hope based on a generally diifused love of country. These 
party strifes have already gone far to debase our patriotism 
from what it once was, a pure feeling of the heart, to what it 
is now, or is fast becoming, a mere principle of calculated self- 
interest. The inevitable tendency of all party administration 
being to corrupt, and that of all party strifes to degrade the 
Government, they must soon deprive it of that reverence and 



472 LETTERS ON THE PRESIDENCY. 

esteem, which are indispensahle to a perfect affection. The 
lean ideal which every young American forms, before entering 
upon life, of the government of his country is, that, disregard- 
ing birth or fortune, it holds its offices and its honors as the 
brilliant incentive to a noble emulation in her sons, and as the 
impartially distributed rewards of virtue and of talent. This 
idea he forms from studying its theory in the Constitution. It 
is for this he loves and adores his country as the exemplar of 
the world. He considers it worthy of his utmost devotion, and 
pays it with all the enthusiasm of a young heart. As he ad- 
vances in life, as he comes to know who they are that have 
obtained those offices and honors, but, above all, when he learns 
the means by which they have been obtained, — that they are 
no longer the rewards of virtue, talent, and eminent public 
service, distributed by an impartial country to her deserving 
sons, — that they have become the property of political factions 
and are dealt forth as the rewards of party zeal and fidelity, 
his feelings recoil upon him, with a loathing and disgust, pro- 
portioned to the extent of his delusion and disappointment. 
Now that he sees things as they are, that he beholds them in 
their nakedness, by what incentive does his country urge him 
to fit himself for her service ? She bids him bustle in the ranks 
of faction, to learn those arts of low intrigue and electioneer- 
ing by which alone he can ascend the ladder to party elevation. 
She bids him to assist in degrading and defiling her institu- 
tions, that he may participate in her most elevated employments. 
The youth of unpracticed heart, of noble impulse and generous 
feeling, recoils from the proposition as he would from contact 
with pollution. Yet such as he are her only hope, her only 
trust in that hour of her need, when self must be nothing and 
country everything. We cannot cease to deplore, but let us 
cease to wonder at the decay of true feeling for country among 
us. Let us also cease to wonder how and why it is, that certain 
descriptions of men obtain the highest and most important 
employments under Government. It is such as they who are 
ever in the van of party. It is they of the pack, who are ever 
in at the death, and howling for their pay. 

One not among the least of the evils resulting as a natural 
consequence from the perpetual recurrence of the excitations 



LETTERS ON THE PRESIDENCY. 473 

of tliese Presidential contests, is the moral abasement of that 
great lever of our liberties, the public press. Every one is 
sufficiently aware of tlie mighty influence wliich the press has 
upon the actions, the opinions, and the morals of the people. 
The editorial corps of a free State are its political sentinels. 
Eeporting truly the watches of the night, they should never 
give false alarms. Supervising for the people the acts of pub- 
lic servants, they should never accuse falsely, nor commend 
unworthily; faithful in the detection of all abuses of power, 
they should never cloak them from public view, nor screen 
them from popular censure; the advocates of principles and not 
the adherents of men, standing in the attitude of public cen- 
sors, they should, if practicable, maintain an attitude of strict 
impartiality and strict neutrality between great political rivals 
and great political parties in power. None but such as these, 
if they were to be had, would be truly deserving the support 
of a free people. Yet of the thousands now published in the 
United States, there is probably not one paper for which even 
its own editor would claim that it is strictly impartial on politi- 
cal subjects. Nor is this the fault of the editors. They, like 
most of us in this country, have to live by their calling. No 
press is now sustained for its impartiality and ability. The 
press depends upon its patrons. The present vitiated state of 
the public taste admits of no neutrality, no apparent lukewarm- 
ness. The food that is dished for it must be highly seasoned, 
deeply flavored. The editor must administer to the public 
appetite as he finds it. The mangling of the public and pri- 
vate character of political men, the debasing of the motives of 
action of the loftiest and purest to a level with the meanest, 
the fomenting of party rage and party hate, these are the dishes 
that are devoured with most avidity. At this day no politician 
(and we are all politicians) cares for the boldness, frankness, or 
integrity of an individual editor. He buys a paper because 
it is an agent of his party, to promote or to preserve its eleva- 
tion. Whenever an editor undertakes to think for himself, or 
differently from party dictation, the party ceases to sustain 
him. The editors do but imitate our leading politicians, who 
themselves imitate the lawj-ers. They handle all political 
questions like feed advocates, and consider themselves as 
60 



474 LETTERS ON THE PRESIDENCY. 

standing in that attitude before the country; and, as such, feel 
justified in making the most of the cause in which they are 
enlisted, good or bad. All this is most pernicious, when we 
consider tiie immense influence they exercise over public oj)in- 
ion and public morals. Though a politically "debased public 
press is rather the consequence than the cause of a vitiated 
state of public morals, yet such is the influence of the press in 
augmenting such a state of morals that nothing is better de- 
serving an anxious care than the preserving it pure, independ- 
ent, and respectable, and the removing from our institutions 
everything that bears upon it with a contrary tendency. 

So long as all the oflices and power of the Government are 
held forth as the incentives to a venal scramble for the Presi- 
dency, so long will the agency of a party press be required and 
had. If there were no other motive for changing the mode of 
electing our Presidents, that of removing so great an incentive 
to the demoralization of the press would, with the considerate, 
be amply suflicient to require the change. The evils to a re- 
public from a merely party press are infinite. Every man's 
own reflections must satisfy him of the importance of this 
topic. One of the more obvious and important of those evils 
will be suggested as a specimen of the rest. The great benefit 
derivable by a free people from a free press is the dissemina- 
tion of political light and correct information as to the con- 
duct of public servants. This duty will be habitually and 
faithfully performed by the press, so long as it remains inde- 
pendent. But so soon as it loses its independence, by be- 
coming allied to one or the other great political factions, 
instead of aiding, it greatly obstructs, if it does not totally 
prevent the dissemination of pure light and information. 
After the political parties have once been formed, and the 
great body of the people made to take sides, those who em- 
brace within their class almost everything we have of well- 
meaning, disinterested devotion to country, those to whom it 
is most importaat that light and information should be car- 
ried, and upon whom alone it is calculated to produce an eflfect, 
from inclination or other causes, read no papers but those of 
the party to which they are allied. The consequence is an 
obvious one. They receive no light or information, except 



LETTERS OX THE PRESIDENCY. 475 

tliroug'h that distorted and distorting medium. If a few scat- 
tered rays should chance to he forced upon them through a 
paper of the opposing party, they have been so long taught to 
loathe and distrust everything emanating from that source, and 
their means of obtaining accurate information for themselves 
is so inadequate, that they content themselves with disbeliev- 
ing what comes from so distrusted a quarter. They have, in 
short, about the same opportunitj- of comiug to correct conclu- 
sions upon politics, as a jury would who were allowed to hear 
the witnesses and lawyers of only one side of a cause. Such 
is the vitiating effect of partyism upon everything it touches. 
Thus rendering the press, naturally so well adapted to con- 
ferring these necessary benefits, the most effectual means of 
producing their deadly opposites. 

It was my purpose^ in another number, to have gone very 
fully into a development of the pernicious effects produced by 
the unceasing scramble for the Presidency upon the legislation, 
not merely of Congress, but of the different State Legislatures, 
and then to have exposed that most odious feature of the pres- 
ent system, which enables every party President to appoint 
his own successor. But the discussion has swelled so far be- 
yond my original anticipation, and I am so apprehensive of 
wearying public indulgence and patience, that I must leave 
those, together with other topics of minor importance, to the 
abler animadversion of coadjutors that I cannot but hope to 
find in different quarters of the Union. They, perhaps, may 
be able to overcome the difliculty of so handling those topics, 
as to do full justice to them without offence to the party feel- 
ings and prejudices of the day. That, I confess, is beyond my 
skill ; and I have, on that account, the more readily determined 
to avoid those topics, and leave them undiscussed, though, in 
my opinion, presenting some of the most serious evils of the 
present system of electing Presidents. 

No. vn. 

"And they gave forth their lots, and the lot fell on Matthias, and he was 
numbered with the eleven apostles." 

There is a commendable disinclination to any substantial in- 
novation upon the structure of our National Government. The 



476 LETTERS OX THE PRESIDENCY. 

transcendent wisdom of those wlio framed it requires that we 
should confide much to the imputed perfection of their work, 
and distrust our ahility to improve it. But it was no part of 
that wisdom to suppose it perfect. It not merely admits the 
possibility of its containing imperfections, and concedes the 
power of correcting them when ascertained, but renders it a 
duty to the Constitution itself to correct such parts as prove in 
practice not to work according to the theory upon which the 
whole was built. It is no disjointed, disconnected batch of 
abstract dogmas, but an admirable piece of political mechan- 
ism, — its several parts being intended to aid, sustain, and de- 
pend on each other. Its own preservation requires that it 
should continue to act on the principles upon which it was set 
in motion. Whenever, in practice, one part proves destructive 
of another, it is subversive of the principles upon which the 
whole was framed, and needs amending for the very purpose 
of preserving those principles. Whenever, after sufficient ex- 
periment, it is found that any part does not work according to 
the theory of the whole ; if it obtains, in an essential degree, 
more or less power than was intended for it ; if it loses that 
support, or casts itself free from those checks that were in- 
tended for it ; or if it is productive of, or even accompanied by, 
those evils it was intended to obviate and guard against, we 
may be morally certain that such part is not merely an imper- 
fection, but sooner or later must become the cause of destruc- 
tion to other parts. When such discovery is made, the plainest 
dictates of prudence suggest the propriety and necessity of 
amendment. We may not, at a single efibrt, be successful in 
achieving the desired perfection ; but each efifort will approach 
us nearer to it, until finally attained. Not to make the effort 
is to be recreant to that trust which the Constitution confides 
to each succeeding generation, and the exercise of which, with 
prudent, cautious discretion, will, in all time to come, be ne- 
cessary to preserve the Government in healthful action. To 
suppose the people incapable of detecting such an evil, or 
lacking virtue to correct it, is to suppose them incapable of 
self-government, and to belie the noblest truth inculcated by 
our institutions. 

The previous numbers have been written in vain, if every 



LETTERS ON THE PRESIDENCY. 477 

reader is not satisfied that the mode of choosiiifr our Presidents 
not only does not work in practice, according to the anticipa- 
tions of the framers of the G-overnment, but is so productive 
of the very evils intended to he guarded against, as to threaten, 
if not ultimate destruction to the whole Government, at least 
that of nearly all the benefits derivable from its other parts. 
It stands as a concession, taken from the admissions of all the 
prominent statesmen of all parties, that the Executive depai-t- 
ment has not merely acquired vastly more power than was in- 
tended, but has cast itself free from all check and control. 
The time, then, for amending and remodeling that department 
must have arrived, in order to preserve the Constitution itself; 
and this is the great duty which the present generation owes 
toward that sacred instrument. This, sir, is emphatically the 
great duty which the guiding intelligence of the day owe to 
their own reputations, to their o^vn generation, and to all 
posterity. 

It will be in vain that we shall seek palliatives and correc- 
tives of the evils flowing from Presidential elections, by 
amending the mode of election. Most of those evils are 
necessarily inherent in every mode of election. The only 
alternative is to abolish the election altogether. We must 
provide Presidents for the country by some method, which, if 
it partake of the character of an election at all, must be in so 
remote a degree, as to cause no apprehension of generating, to 
any great extent, those ills that are the natural attendants upon 
all elections, whether legislative or popular. 

This result can be attained, and is only to be attained, by 
making the choice depend mainly upon lot. The plan I have 
to propose is a mere modification of that suggested many years 
ago by a distinguished Senator from Connecticut, on^the eve 
of his retirement from public life, as a legacy of advice to his 
countiy. It is, in substance, this : 

To form an Electoral College, by Electors chosen by the people 
of the different States, in this ratio : those having a population 
less than five hundred thousand to elect one ; those with that 
population, but less than two millions, to elect two ; those over 
two, and with less than four millions, to elect three ; and those 
■v\ntli over four millions to elect four Electors. From the Col- 



478 LETTERS ON THE PRESIDENCY. 

lege so formed, to select any proper number, say seven, by lot, 
and from those seven the other Electors to choose the Presi- 
dent immediately without adjournment or debate, by viva voce 
vote ; dropping the hindmost at each ballot, until one has a 
majority, or until a tie is produced, and, in that event, giving 
the power of choosing from those having an equality of votes 
to the Speaker of the House of Representatives, or to the Chief 
Justice, or some other officer of the Government. The Vice- 
President to be then chosen in the same manner. Both to 
hold their offices for four years. The veto power to be so 
reduced, that the repassage of a bill, by a majority of all the 
members elected to both Houses, shall overrule the President's 
veto. The holding of any other office to be no disqualification 
for the office of Elector, and requiring each Elector to be a 
citizen of the State electing him. The Electors to be allowed 
no pecuniary compensation but such as would barely cover 
their travelling expenses. 

It will be readily perceived that the main idea, upon which 
this scheme is based, is to have it so arranged, that, by no pos- 
sibility, the Presidential chair can ever become the subject of 
party contests. It is not presumed that this is the only mode 
in which that object can be properly attained; but it is pre- 
sented as one by which it can be successully accomplished, 
and as a specimen of the simplicity and facility with which it 
can be done, without violating any cardinal princi23le of repub- 
lican government, or disturbing that great compromise of con- 
flicting interests, which is the foundation of the Federal Con- 
stitution. If it be not the best plan, its discussion and con- 
sideration will serve, at least, to elicit the suggestion of that 
best plan. 

By this mode a Chief Magistrate could be safely provided for 
the nation, without heat, turmoil, or strife of any kind. Those 
political national cabals which have for their object the eleva- 
ting particulai' men, and obtaining the offices and power of 
the Government, which have so long distracted the country, 
would at once cease, and could never be revived. Federal 
politics would no longer mingle \\dth, or at least they would 
not control, the aftairs of the State Governments. The legis- 
lation of Congress and the State Legislatures would cease to 



LETTERS ON THE PRESIDENCY. 479 

be contaminated and controlled by the corrupting leaven of 
that vile party spirit growing out of contested Presidential 
elections. Our Congressional and Legislative halls would no 
longer be filled by men having, for their greatest merit, their 
adherence to political aspirants. Our elections would no longer 
be polluted by bought or illegal votes, nor by the acts of fraudu- 
lent officers. The President would no longer possess uncon- 
trollable power above the Constitution; but he would be brought 
under control, and be subjected to an effective responsibility 
to the Representatives of the people, their mutual party ties 
being severed, or they being no longer bound to support him, 
in order to sustain themselves. In fine, we should be giving 
the Constitution fair play, to solve, by fair experiment, whether 
we are competent to self-government or not. 

Every motive for the creation, and every principle of adhe- 
sion for a party based on mere personal selfish considerations, 
would be taken away, and none such could exist. Parties, no 
doubt, there still would be, but not of that tendency to the 
debasement of public morals, which all parties have that are 
formed for individual elevation and aggrandizement. The 
only great national division, most probably, would be, into 
those who endeavor to enlarge, and those who endeavor to 
curtail the powers of the General Government. Such par- 
ties are healthful in their operation, and should always exist. 
Their tendency is to results which lie at a medium between the 
extremes of both. Political strifes about abstract principles, 
or mere questions of policy in legislation, are not calculated to 
produce that dangerous effervescence of popular excitement, 
which is the never-failing accompaniment of scrambles for 
office, through the means of popular elections. The most im- 
portant popular elections would be those for State Governors 
and Presidential Electors. The excitements produced by these 
would be local in their effects, and the influence of the ISTational 
Government would cause them to effervesce harmlessly. J£ 
the larger States, where the patronage is worth contending for, 
should adopt a similar plan for providing themselves with 
Governors, then the main spring to party excesses would be 
taken away throughout the land. 

A President coming into office by this mode, would do so 



480 LETTERS ON THE PRESIDENCY. 

untrammelled by pledges, to men or as to measures, and free 
to exercise the dictates of his own judgment. He would have 
nobody to pay for his elevation. The public purse would not 
be squandered, nor the public offices degraded by paying off 
his political party debts. He would have few or no political 
or personal partisans, and, of course, would appoint few or 
none such to office. Eminent talent and true virtue would 
stand upon their just pretensions, in competition for the higher 
offices and employments within the gift of the Executive. He 
would have no inducement to remove a good officer, merely 
because he was appointed by his predecessor. There would, 
in fact, be no motive for putting a man in or out of office, 
merely for the sake of his political tenets. The only ambition 
or desire a President so chosen could have, would be that the 
affiiirs of Government, during his term, should be well admin- 
istered. He would be naturally indisposed to disturb a worthy 
incumbent, for fear the public service might suffer by the 
change. 

It is needless farther to enumerate the benefits that would 
ensue from this mode of electing a President ; they will readily 
occur to every reflecting mind, and it would be but to recapitu- 
late the evils of the present plan which this mode would avoid, 
and most of which have been dwelt upon already. It will be 
more profitable to anticipate and answer some of the objections 
that may be urged against such a mode. 

Among; the first that will suggest itself to most men of in- 
telligence, is the difficulty of getting the most competent head 
to the Government. It has already been sufficiently remarked 
upon, how little the present plan is calculated to ensure us 
that. It is believed the proposed plan is fully as well calcu- 
lated to insure the possession of adequate virtue and talent by 
our Presidents ; and, if the choice be made from those desig- 
nated by the lot, without the bias of party influence, is much 
better calculated to insure that object. The office of Elector 
will be sufficiently dignified and important to be sought by the 
first men of the respective States, whilst the remoteness of the 
chances in favor of any one man will prevent its serring as a 
lure to the unworthily ambitious. Men will lack the motive 
to seek the station of Elector, in despite of all fair claims and 



LETTERS ON THE PRESIDENCY. 481 

pretensions to it. The States would be emulous of showing 
forth their very best men upon such an occasion, and of pre- 
senting to the nation such as would be best calculated to draw 
attention toward them, as qualified to fill the station, provided 
they came within the lot. It would rarely happen that a per- 
son would be elected as an Elector who did not possess fair 
character and respectable abilities. These are all that are re- 
quisite for a good President. If he be a man of transcendent 
ability, he directs and leads the whole Government. If of 
inferior capacity, the other functionaries control and lead him. 
It would be hazarding little to predict that the Electoral College 
would be all that the selected talents and distinguished virtue 
of the nation could make it. If it even approximated such a 
condition as that, it could not well be that the worst fortune 
of the worst chapter of accidents, under such a system, could 
give us a President less qualified for the office than a large 
majority of the crowned heads of Europe. The more ridi-culous 
caprices of blind fortune are sufficiently guarded against by 
the number which the lot would be required to present to the 
Electors for selection. It is impossible to believe but what 
some of the seven would possess pretensions, both as to cha- 
racter and capacity, far above an average of the Governors of 
our States. That average would be very sufficient. Our Gov- 
ernment, no more than that of other people, requires at all 
times, and indispensably, an Executive head of supereminent 
ability. If it does, it will require what it will seldom have. 
Each country grows such a man about once in a century. After 
the attainment of a certain not very elevated point of mental 
cultivation, the actual difference between men is much less 
than is commonly supposed. The gairish talents that produce 
the admired and popular hero or orator are not always accom- 
panied by those qualities best suited for the cabinet and helm 
of State. The man of genius is always a bold and restless 
innovator in science and government. The mediocre man is 
content to let very well alone. Of the two, he is generally the 
safer, and therefore better, head of a republic. The one is 
ever ambitious of signalizing his career by something grand 
and new ; the other is content to move smoothly on in the 
beaten path. 
61 



482 LETTEES ON THE PRESIDENCY. 

By law, or immemorial custom, the senior alderman of Lon- 
don is always made mayor of that city, and the plan works well 
enough ; at least, no complaints have been heard of the city 
suifering on account of the incompetency of any of its mayors. 
The reason given for the law or custom is, that the evil of com- 
petition for the office is worse than that of the worst mayor 
that can come. For the same reason, Virginia and Kentucky 
give the sheriffiilty to the oldest magistrate of the county, and 
no other States are, in general, provided with better sheriffs. 
The people of Kentucky, after eight or nine years' trial of the 
evils attending the election of sheriffs, went back, almost 
unanimously, to the old plan. And so may we also say of the 
Presidency, that the evils of competition for the office are worse 
than the worst President that can possibly come, under the 
proposed plan. The game that is played for the Presidency 
is, no doubt, a very pleasant game to those who play it and get 
all the- profit ; but it is a poor game for the nation, that pays all 
the expense and gets worse than no share of the gains. It may 
be very intoxicating to the vanity of the players, to have us all 
at loggerheads and throttling each other, whilst we are deter- 
mining which of them is the greatest man or best deserving 
our confidence. It may even be a very amusing game to cer- 
tain minor participators in the play, who love the excitement, 
and make their own smaller profits out of the sport. To the 
nation at large it affords neither amusement nor profit, and the 
expense is beyond endurance. If the opposition of the players 
to the proposed change can be bought off in no other way, the 
nation can well afford to postpone its taking eftect for ten or 
fifteen years, and thus afford the present batch of players am- 
ple opportunity to play out their game. For one, however, I 
am not for buying off that opposition at any such price ; but 
vote for blocking the game at once and forever. 

Another objection that may be suggested to the proposed 
change is, that from the mode of choice, a person might be 
selected whose views of policy would be different from those 
of a majority of the nation, and he might thwart a settled 
policy during his whole term. If he honestly discharge his 
duty, he will never allow his own individual opinion to weigh 
against and overrule the settled -will of a decided majority of 



LETTERS ON THE PRESIDENCY. 483 

the nation. Bat a more satisfactory answer to tlic oLjcetion 
is, that, with the proposed reduction of tlie veto power, he will 
not be able so to obstruct the national will. 

It may also be objected, that, as the proposed plan takes 
from ambition a sure and legal path to the highest office in 
the country, it will force another for itself through a breach 
in the Constitution. This is an idle fear. This country has 
nothing to fear from an usurper, until the body of its people 
shall have become thoroughly corrupted by party excitements 
and broils. When that takes place, he will rise up under any 
system. So far from its being a defect, it is deemed a chief 
excellence of the proposed plan, that it will set this barrier to 
the efforts of ambition ; that it so places the Executive office 
that it cannot certainly be attained through any amount of 
individual or party effort; and that ambition may exhaust all 
its energies, and corruption expend all its stores, without any 
certainty of success. 

Another objection, though in truth none at all to the in- 
trinsic propriety of some such change, is deemed worthy of 
notice, from the flict of its being the onl}' objection that has 
ever been urged by any of the many individuals to whom it 
has been suggested; that is, that the people will not assent to 
the change. It is singular that, in a Government like ours, 
such an idea should be seriously insisted on, by men of every 
grade, from the highest to the lowest, who will, at tlie same 
time, unqualifiedly assent to the importance and fitness of the 
proposed change. It is unfortunately owing to the habitual 
distrust which man feels toward his fellow men, and the dis- 
semination of that daily increasing distrust of popular virtue 
and intelligence, which is one among the eftects, if it may not 
be called an evil, of the present system. It would seem to be 
time enough to pass such sweeping censure upon the peoj^le, 
when the proposition shall have been presented to us and re- 
jected. jSTothing can be more delusive than that self-esteem, 
which, ascribing all virtue and intelligence to ourselves, allows 
none, or but comparativelj' little, to our neighl)ors, "We have 
in the mass of our society, or in that part of it which guides 
and controls the balance, in every quarter of the Union, a fund 
of substantial common sense, adequate to the perception of any 



484 LETTERS ON THE PRESIDENCY. 

evil in the Government, and tlie judging upon tlie fitness of 
any proposed corrective, accompanied, too, witli a single- 
heartedness and purity of purpose unknown to most of those 
of the higher order, who are willing to appropriate to them- 
selves all the virtue and intelligence of the land. The same 
reasons that would induce me and others like me, of the 
general mass, to surrender that modicum of influence, which 
severally belongs to our individual votes in making a Presi- 
dent, would cause all others to surrender theirs also for the 
good of the country, even if there were any such surrender 
required. But, in fact, there is none such required, unless 
perhaps it be from the citizens of the four large States. It can 
be demonstrated that the weight of each man's vote in all the 
other States will be increased by the change. 

The true difficulty lies not there. It is not in our actual 
want of the requisite virtue and intelligence, but in the lack 
of confidence in us, on the part of our Eepresentatives. They 
are afraid to peril their personal popularity so far, upon a 
measure that has not undergone the test of popular favor, as 
to propose it for our adoption. This apprehension, and the 
objection which is its offspring, when looked into, is based 
upon a false deduction from its own premises. The idea is, 
that we will not agree to the change, because every one is 
supposed to act exclusively from a narrow self-interest, and 
no man will therefore surrender his share, however small, of 
influence in the Government. The whole hypothesis is based 
upon the supposition, that we have the intelligence to see our 
own self-interest so far as to know what is or is not an increase 
or diminution of the power we reserve from or retain over our 
public servants. This conceded, the whole objection evapor- 
ates at once. For, as with the exception of the voters of the 
four large States, the individual influence of each man's vote 
would be enhanced, instead of being diminished, we ought to 
be presumed to desire the change for the purpose of increasing 
our power. On the score of interest, it is to the patriotism and 
good sense of the people of the four large States, alone, that 
any appeal need be made. The imputed selfishness of the 
rest, should make them more than willing to the proposed 
change. Nor would the call upon the patriotism of the people 



LETTERS ON THE PRESIDENCY. 485 

of the four large States be much. For, takino; into considera- 
tion the chances for the frequent devohition of the election on 
the House of Representatives, the substitute ofters them an 
adequate equivalent in the difference proposed in their favor 
in the formation of the College. That diflerence is not as much 
as, in justice, ought to be accorded to them, if we were framing 
the Grovernment entirely anew, upon the principles of a con- 
solidated Democracy. But standing, as it does and ever must, 
upon federative as well as democratic principles, the diHerence 
is fully as much as ought to be expected, or will be conceded 
by the smaller States. The proposed reduction of the veto 
power will also somewhat enhance the equivalent, as that is 
one of the most strongly federative features of the Govern- 
ment, as it is also decidedly the most anti-democratic. 

But, sir, whilst I am fearing opposition to the plan from the 
Federalists of the nation, because it will so essentially curtail 
the powers of that department which has been supposed to be 
so greatly the favorite with them, you may be apprehending 
opposition from the Democracy of the countr}-. You may well 
fear party Democracy, or any other partj'-ocracy ; for the diffi- 
culty of procuring that or any other amendment is so great 
that the general concurrence of all existing parties will be 
required, and it should never be presented as a movement from 
either party. But of old-fashioned Democracy, that Democ- 
racy^ which had for its motto "principles, not men," you need 
have no fear. I am a born child, an educated son of that 
school, and profess to know somewhat of its principles. Jealous 
of power, and especially jealous of public servants, yet it has 
sense enough, whatever its maligners may think or say, to 
know the necessity of good government, and cheerfully grant 
all power necessary to that end. 

It has sense enough to know that an elective despotism does 
not suit the countrj^; that the concentration of all legislative 
as Avell as Executive power, nor the concentration of any other 
exorbitant and irresponsible power into the hands of a single 
man, is not according to the principles of good government ; 
that the pollution of the ballot-box, or the degrading of popular 
election, does not suit the country ; and, that neither the school 
itself, nor its true followers can have any interest in upholding 



486 LETTERS ON THE PRESIDENCY. 

a system, tlie inevitable effect of wliicli is ultimately to cause 
all popular elections to be carried either by tlie force of 
knavery, or the power of the j)urse. In fine, it has sense 
enough to know the importance of keeping away too strong 
stimulants to popular heat and strife, and that there are many 
instances where it is better to trust the filling of oflices to ser- 
vants elected by the people themselves, than submit to the 
inconveniences of popular elections to such offices. ISTot only 
the Federal, but all the State Constitutions, are replete with 
the evidence and proof of the possession of this sort of wisdom 
by the Democracy of the land. Every man must acknowledge 
that the plan proposed is much more Democratic, even accord- 
ing to a Federalist's ideas of Democracy, than the present plan, 
as it was understood and intended to operate at the time of its 
adoption by our fathers. We Democrats of the present day do 
not affect to be wiser or purer than they. Their Democracy was 
pure enough and good enough for us. 

Rest assured, sir, that if those who have been educated in 
the Federal school do not find anything in the scheme repug- 
nant to their peculiar notions of Government, that those of 
our school will not. My own belief of both schools is that you 
have only to convince their judgments of its necessity, and not 
being repugnant to the prejudices of either, they will both 
accord to it a ready assent. This belief, I might say this strong 
conviction, arises not merely from the undoubting convictions 
of my own mind as to its propriety, but from the fact that of the 
numerous persons of all the different grades of intellect, different 
parties ajid different stations in society, to whom I have men- 
tioned it in the course of the last twelve years, not one has 
failed to accord the scheme his most hearty approval the mo- 
ment he understood it. If you doubt this, go into your streets, 
take men promiscuously as you may chance to find them, tell 
them there is a nameless somebody in the far West who has 
been proj^osing this alteration in our Government, and ask 
them what they think of it. You will not probably find one 
in a morning's walk who will not give you a similar response ; 
and, without hint or suggestion from you, the humblest among 
them may surprise you by the force of the arguments he will 
adduce in support of his opinion. 



LETTERS ON THE PRESIDENCY. 487 



APPENDIX TO CHAPTER XX. 

No. I. 

The publication of the Letters on the Presidency induced a published cor- 
respondence between the late Roger M. Sherman, of Connecticut, and their 
author; extracts from -nhich are here given. 

The talented editor of the Louisville Journal, in referring to that correspond- 
ence, thus spoke of Mr. Sherman : 

" It may not be amiss to state, for the information pf "Western readers, that, 
in New England, his reputation as a profound and enlightened jurist is unsur- 
passed ; and that, as a talented statesman, he is deemed to have few or no supe- 
riors. We do not think that we need except even Daniel "Webster." 

Mr. Sherman had previously published a plan for relieving the country from 
the party excesses growing out of our Presidential elections. This was, in 
substance, to arrange the members of the House of Representatives into five 
geographical districts ; draw a member by lot from each district, and upon the 
five so selected confer most of the President's patronage, not pertaining to the 
army, the navy, or foreign relations. 

Fairfield, Conn., Febniai-y 4, 1841. 

Dear Sir, — Rarely has any occurrence afforded me so much satisfaction as 
the receipt of your letters on the Presidency. You have made a clear and im- 
pressive exhibition of the only constitutional disease which endangers the 
morals and liberties of the country, and have ably shown and illustrated the 
only remedy which can be effectual. There is no sufficient remedy but the 
lot ; and that is so unexceptionable, so congenial to the inestimable principles 
of republican liberty which pervade our whole system, and the spirit of our 
people, that no other can be reasonably desired. In this State, and many 
others, the jurors, who guard and dispose of property, liberty, reputation, and 
life, in the administration of justice, are selected by lot from a body previously 
chosen. It has never been imagined that the democratic principle was invaded 
by this mode of constituting a department, which has more practical and un- 
remitted influence on the highest interests of the citizen, than any other agency 
of the sovereign power. The difficult question is not whether the lot shall be 
applied, but in what manner and to what extent.* 

I should have embraced the plan of Mr. Ilillhouse, to choose the President 
himself by lot, from the senior class of Senators, had I not found, so far as I 

*The plan vre hiive always had in Kentucky to provide an honest hoard to try and 
decide a contested election of Governor or Lieutenant-governor, has been to select mem- 
bers of the Legisluture for that purpose by lA. By the revision of 1S50 the same plan has 
been extended to contested elections of members of the Legislature. 



488 LETTERS ON THE PRESIDENCY. 

could ascertain, that public opinion was opposed to it. But all these great 
men (Chief Justice Marshall, William H. Crawford of Georgia, and Chief Jus- 
tice Parsons of Massachusetts), who approved it, expressed their apprehension 
that public sentiment could never be reconciled to its adoption. I am appre- 
hensive its adoption will prove impracticable. 

Permit me, sir, respectfully to submit to your consideration a dif&culty which 
occurs to me, in the particular plan which you propose. 

We concur in the great object, which is so to apply the lot as to preclude the 
influence of ambition and cupidity in the elections made by the people. If 
your plan will produce that effect, it is not liable to the objection which I am 
about to suggest. 

Will the ultimate choice of a President, made by the Electoral College, from 
the members selected by lot from their own body, be governed or materially 
influenced by the political parties of the country? If it will, we shall agree 
that the deplorable corruption which now threatens ruin to the morals and 
liberties of the nation, will retain its vigor, and accomplish its desolations. 

Suppose the College to consist of fifty, chosen by the people of the several 
States, and each party to secure as many as possible of its members. When 
they are convened the lot is cast. It is easy to guard against corruption in 
that process. Were the President to be chosen by the seven thus selected, the 
party influence which had been exerted in constituting the College would be 
ineffectual. To predict from which party the lot would select a majority of 
these seven, would baffle the skill of the most astute politician. But the chance 
that one, at least, would be drawn from each party, would almost amount to a 
certainty. If their numbers were equal in the College, this chance would be 
seven to one. It will then be foreseen, in the original choice of members by 
the people, that the chance of getting a President will be more than seven to 
one in favor of that party which shall secure a majority in the College. Will 
the motives to party struggles, as compared with the present state of things, 
be materially varied by the proposed amendment ? I fear that the election 
which folloics the lot, made by cJiosen agents, will go far to neutralize its in- 
fluence. A nomination of a partisan, made by lot, will not differ from a nomi- 
nation by a caucus. Then, as now, the majority in the College will choose a 
candidate from its own party. 

We agree as to the remedy ; and as to the mode of applying it I have no 
choice, if one can be adopted which will, as far as possible, avoid the necessity 
of encountering popular prepossessions, and secure the great object intended. 
Yours, with great respect, ROGER M. SHERMAN. 

S. S. Nicholas, Esq. 



Louisville, Ky., Fehruanj 14, 1841'. 

Sir, — The name of Chancellor Kent can now be added to those in favor of 
obtaining our Presidents by lot instead of elections. 

The objection you urge to my modification of Mr. Ilillhouse's plan had not 
escaped my attention, though I did not view it in the serious light you do. As 
a matter of course, I consider that under such a plan the first President would 
be selected more on account of his party politics than his personal qualificationa. 



LETTERS ON THE PRESIDENCY. 489 

This is unavoidable ; but there I suppose the evil would, in a f^eat measure, 
stop. If he possessed any part of the integrity he ought to have, he would 
endeavor to carry out the principles of such a new system and, refusing to act 
as party President, do all he could to allay party acerbity and division. The 
success of Mr. Monroe in bringing about the " era of good feeling," is proof 
positive as to the power of a President in that way. Such a course would 
expose the futility of party organization for controlling the election to party 
purposes, and it seems to me would prevent it. One disappointment of such 
hopes would forever deter from taking the trouble necessary to general organ- 
ization and action. Great national parties can neither be gotten up, or kept up, 
except by the countenance and exertions of the more distinguished politicians; 
and my belief of them is, that they will never lend that aid unless they know 
beforehand who is to be benefited or who is to be prejudiced, one or both. This 
they could never sufficiently know, under such a plan. It would not be like 
all the malcontents of the nation uniting upon a man for whom they personally 
care but little, in order to turn out one whom they knew to be inimical to 
tliem. There never would be any one to turn out, and no one who could be 
certainly designated as the man to be put in. 

Supposing parties in some shape always to exist, I should esteem it a merit 
rather than a demerit of the plan, that it afforded the majority party a prob- 
able opportunity of getting a man of their own politics, provided it did not 
leave the spoils so far within the direct and certain reach of party as to render 
them the thing sought for, and the very object of party combination. 

These reasons induced me to think the range of choice might be extended 
as far as seven, without danger to the principle of the scheme. I was dis- 
posed to extend it to the utmost verge, not by any means because my own 
opinion was in favor of so large a number, but to render it as acceptable as 
possible to popular taste, and from the conviction that the little countenance 
Mr. Ilillhouse's plan had received was owing to the total absence of some such 
range of choice. 

If, however, these reasons are sufficient, and I am not at all prepared to in- 
sist that they are, if your objection does really apply to so large a number as 
seven, it is unanswerable, and should forbid the adoption of that or any other 
number to which it will justly apply. My own preference would be in favor 
of four or five. Reduce it as low as three, and it seems to me the whole ob- 
jection would be entirely obviated. The chances would then be too small to 
constitute an inducement for the formation of parties to that end. 

You are kind enough to ask my opinion as to the amendment proposed by 
yourself. I deem your article perfectly conclusive, as to the futility uf all 
schemes for transferring the patronage of the President to either House of 
Congress, with the view of reducing his power and bringing him under con- 
trol ; and, if the powers of the President are to be reduced, and the stimuhint 
to party action removed, by curtailing the amount of his patronage, your plan 
is the only one I have ever yet seen suggested, that bears with it even the 
plausible appearance of being effectual. 

I will, however, respectfully suggest a reason for doubt whether it would be 

62 



490 LETTERS ON THE PRESIDENCY. 

effectual, and if it were, -whether it would be desirable. The honor and power 
still remaining to the office of President would be so great, as to render it a 
high prize, Avell worthy the emulation of the ambitious, and still present it as 
a nucleus for the formation of national parties, and the gratification of that 
great natural bent of the whole human family toward forming themselves 
into contending parties. The House of Representatives being, therefore, 
always made up of party men, your scheme would necessarily devolve the 
appointing power upon men who would be of one or the other party. If of 
the dominant party, then, according to your own argument, would it even 
diminish the party power of the President? Would it not rather enhance it, 
by giving him all the benefits of its exercise for party purposes, without the 
odium and responsibility for its abuse ? If the appointing committee should 
chance to be of the minority party, its powers would be used for the behoof 
of that party, to the infinite vexation and annoyance of the majority ; and 
might it not furnish the cause or pretext for exasperating and injurious colli- 
sions between the difi"erent functionaries of Government? As I understand 
it, you intend the term of ofiice of the committee shall be only two years. 
Would either its duration or importance content the political aspirations of 
the committee-men ? would it place them above the influence of party ? But 
being under its trammels, would they not still look to its propitiation as the 
means of further elevation ? 

For the reasons stated in my printed letters, I am disinclined to any carving 
away of the President's constitutional powers, unless it can be so done as 
essentially to mitigate the excess of party action on our institutions, and only 
with a view to that object. He must always be either a cypher or a despot, 
as his character is either weak or strong ; and so the matter must ever rest, 
unless he can be obtained by some process different from that which controls 
the election of members of Congress. My wit is utterly at fault for devising 
any other means of making them independent of each other. 

Most respectfully, S. S. NICHOLAS. 

Hon. R. M. Sherman. 



Fairfield, Conn., March 17, 1841. 
Dear Sir, — I should be much disposed to hope, if warranted by experience, 
that the person elected President, in the mode which you propose, " would 
endeavor to carry out the principles of such a new system, and, refusing to 
act as a party President, do all he could to allay parties." But, in this and 
all other countries where parties have existed, it is fully proved that, although 
an honest man, like Mr. Monroe, to whose example you allude, may sometimes 
use his influence to soothe party asperities, no reliance can be placed on so 
rare an occurrence in providing against the abuses of power or the inroads of 
corruption. Something, in his case, was attributable to circumstances as well 
as to the excellent disposition of the man. His own party had gained an entire 
predominance, and their opponents had retired from the conflict. The idea 
of the necessity of any amendment is founded on the assumption that the 
temptations to party coalitions for attaining office must become extinct, and no 
confidence be placed in the heart of man as their antagonist. Every member 



LETTERS ON THE P II E S I D E N C Y. 491 

of the proposed College will then, as now, be pledged to liis party as an indis- 
pensable condition of his electiim. AVe know with what sacrednoss these oldi- 
gations are kept to the neglect of every other. Not the }nan who is made Presi- 
dent, but the parti/, is the object of strife. The spoils will be as faithfully 
distributed by any pledged member of such a College, who should luippen to 
be drawn and chosen' President, as by one elected by the original suffrages of 
the people in the present form. 

The enterprize of our people, and the many hazards which it leads them to 
encounter in their business operations, fill the country with a large portion 
of citizens bereft of revenue, " who cannot dig, and to beg they are ashamed ; " 
whose chief or only hope of escaping the sufferings and dishonor of poverty, 
is the attainment of some of the many thousand offices and employments in 
the gift of the Administration. With despair on one hand, and a hope, as 
three to one, in the event of party success, on the other, can we doubt their 
most strenuous exertions? If, as you seem to suppose, party spirit, grounded 
on hopes from political excitement, is in any degree desirable, it will, I think, 
be impossible to give it place, and at the same time restrain it within reason- 
able limits. I believe the only just policy is its utter extinction, so f\ir as it 
can be effected. 

The course of events in the United States has, in a great degree, obliterated 
that delicate moral sense, which distinguished the assembly that declared our 
independence, the Convention which formed our Constitution, and the earliest 
administration of our Government. So jealous was Washington of his own 
honor, that he would never appoint a near relative to office. He knew, and 
every just casuist must admit, that conferring office for the benefit of one's 
own connections, or to reward political auxiliaries, is foreign from the object 
for which they were intended, an abuse of trust, and palpable corruption. 
Every man who gives or takes an office as a reward for services at the polls, 
is party to an act of bribery. But such a practice is in its nature progressive, 
and when extensively adopted, augurs certain destruction to a republic. A 
GoveiTiment sustained by an hereditary monarch and nobility may retain 
power unshaken by corrupt elections. But in a Democracy the gangrene in- 
fects the vitals of the Constitution, and death is the inevitable result. Des- 
potism will succeed to anarchy, and the liberties of the country be lost for- 
ever. 

The standard of political morality, compared with that of the founders of 
our Govei'nment, is low indeed ; and, unless tlie causes of its rapid depression 
are soon removed, their desolations vnll become irreparable. What are those 
causes but the power exerted over popular elections for the attainment of 
office ? For what else do we seek a remedy ? Would that remedy be effwitual, 
which, as you adinit in regard to the plan you propose, " afforded Uie majority- 
party a, probable opportunity of getting a man of their own politics ? " Could 
this be done, " and not, at the same time, leave the spoils so far within the 
reach of party", as to render them the thing sought for, and the very object of 
party combination ? " 

We are too apt to apprehend that, after adequate amendments to the Con- 
stitution are made, political parties ^vill still exist, and the House of Repro- 



492 LETTERS ON THE PRESIDENCY. 

scntatives continue to be divided, as they now are, by private political inter- 
ests. I think this an error. We must adjnit, for the fact is obvious to our 
daily observation, that in this country, ^vhere no titles or pensions are in the 
gift of the Executive, the natural and essential aliment of political partyism 
is the hope of oflBce. Your remark is just, "that great national parties can 
neither be gotten up, nor kept up, except by the continual and active exertions 
of the more distinguished politicians ; and (your) belief of them is, that they 
vrill never lend their aid unless they hiow beforehand vrho is to be benefited 
and vrho is to be prejudiced, one or both." 

Very respectfully, your obedient servant, 

ROGER M. SHERMAN. 
S. S. Nicholas, Esq. 

Louisville, April 3, 1841. 

Sir, — I must have expressed myself badly in leading you to suppose, that 
I thought " party spirit, grounded on hopes from political excitement, as in 
any degree desirable." Nothing can be farther from my creed than to deem 
party spirit desirable for any purpose. It is the vrorst and most dangerous 
vice of a Republic. It is the more dangerous, because of the lurking guise 
in which it always appears, the semblance of a sort of bastard patriotism. It 
acts upon us in the same way as do those " big wars that make ambition vir- 
tue." It is the most potent spell ever invented by the crafty, for guiding and 
governing the ignorant and confiding. But it is also an irradicable evil. We 
should distrust the eflScacy of any phm that depends for success upon its total 
extinction. We had as well expect by legislation, or constitutional amend- 
ment, to extinguish ambition, avarice, hate, or any other human passion. 
Assuming tliat parties always will exist, I presume you would concede, all 
other things being equal, that a man of the majority party ought to be Presi- 
dent, if he can be had without the danger of party excesses in pursuit of the 
office. This is the extent to which I meant to be understood, as approbating 
the toleration of a party preference. If the scheme could not allow the mar 
jority a probable chance of always obtaining a man of their views of policy, 
for President, without great hazard of having its whole purpose frustrated, 
then, of course, the remedy would be inefficacious, and nothing but the single 
blind lot of Mr. Ilillhouse will answer the purpose. 

Without being at all disposed to be pertinacious on the question (for it is 
but theorizing without the aid of experience), I am strongly inclined to think 
that as many as five could be safely allowed to be designated by the lot, for 
the College to choose from. We have not merely the benefit of Mr. Monroe's 
example to prove what a President can do toward allaying political parties, 
but the example of all the judiciary throughout the Union, ever since- the 
existence of the Government, in abstaining from party bias in their official 
acts, to prove that individual men can be safely relied upon for such absti- 
nence, when ipublic sentiment requires it. Public sentiment is, and always 
will be, the paramount law and controlling power in this counti-y. If it could 
be so far redeemed and regenerated, as to procure the adoption of such an 
amendment of the Constitution, for the very purpose of rescuing the offices 



LETTERS ON TUE PRESIDENCY. 493 

of the country, and placing them out of the reach of party warfare, tlic na- 
tional condemnation of the " spoils system " would be so indelibly stamped, 
that no man raised to the Presidency under such a plan would any more dare 
to act upon that system, than do our judges to decide for or against a litigant, 
merely on account of his politics. Your objection goes upon the hypothesis, 
that public sentiment on that subject will remain what it now is; whereas, 
that sentiment would have to be entirely reformed before any such amend- 
ment could be adopted. A candidate for the Electoral College, therefore, so 
far from giving any such pledge as intimated by you, directly or impliedly, 
would, by its utterance, secure his own certain condemnation and rejection. 
Once establish the principle, that our Presidents were never to act as political 
partisans, there being no personal motive for an incumbent to violate it, we 
could as certainly and as securely rely upon its being acted up to, as we now 
do, upon its being strictly observed by our judiciary. Whilst parties remain, 
any elected functionary who has not attained the topmost round of the po- 
litical ladder, may well be suspected to use his patronage for party purposes. 
But, after attaining the top, he is free to kick aside the ladder by which he 
ascended, and will do so if sustained by public sentiment. 

The plan would, also, under even its most unsuccessful mode of operation, 
save us from much of the evil growing out of another prevalent and irradica- 
ble vice of the whole human family, — that is, a mean subserviency to, and 
blind worship of great men, whether heroes, orators, or statesmen. Nothing 
is more humiliating, but nothing more true and certain, than that the im- 
portant national affairs of an enlightened Republic like this, have been and 
always will be made subservient, through that vice, to the individual interests 
of particular men. If it has not already happened, under the operations of 
the present plan, the time will come, as intimated by General Harrison, when 
an Anthony and an Augustus shall each have a party in Congress, whilst the 
Kepublic has none. The contests for power, between eminent men, has been 
the proximate cause of the destruction of every other Republic. It surely 
would be no small merit in the proposed plan, that it would certainly secure 
us against that danger. 

It is not improbable that the emulation and contests between a few emi- 
nent men have had more to do in the formation and excesses of parties in thia 
country than all other causes combined. I am not old enough to know the 
fact, nor are there sufiGicient data upon which positively to affirm it ; but I 
strongly suspect that the personal rivalry and contests between Jefferson and 
Hamilton, begun in the Cabinet of Washington, had more to do in the subse- 
quent formation of the great Federal and Democratic parties, than any dif- 
ference of creed or views of policy on the part of the great body of the nation ; 
and that the great mass of both parties took their sides and adopted their 
political creeds more from admiration, and confidence bestowed upon those 
two men, than all other causes. Humiliating as this surmise is, its very prob- 
able truth will be vindicated by tracing what we certainly know of the rise 
and progress of the two existing parties. 

Four competitors started for the succession of Mr. Monroe, each upon his 
own personal pretensions merely, there being then no existing parties, and 



494 LETTERS ON THE PRESIDENCY. 

the support each received was mainly ascribable to personal preference and 
sectional bias. Men of all manner of principles and views of policy were to 
be found in the ranks of each. But no sooner had the election terminated in 
favor of Adams, than the two parties were at once formed, — the one com- 
posed of that portion of the nation which personally preferred Adams and 
Clay; the other of those who were opposed to them. The sole point of divi- 
sion throughout his term was the question of his re-election. Of those who 
voted for his successful competitor, probably four-fifths did so more from 
opposition to Adams and Clay, than from preference to Jackson, The point 
of division then turned upon the re-election of Jackson ; and the two parties 
were still so mixed up, with men of all political persuasions, that there were 
no true terms of designation, but the degrading ones, of Jacksonite and Anti- 
Jacksonite. From no other cause, then, than a contest between some promi- 
nent men for the Presidency, with the vexation and disappointment ensuing 
the success of one of them, we had the formation of the present parties, and 
all the misrule that has thence ensued for the last sixteen years, with a cer- 
tainty that the contest will not terminate for at least four years more. We 
have the whole party excesses, for the fifth of a century, fairly traceable to a 
cause that could never exist under the proposed plan. If it did nothing else, 
it would surely be achieving a great deal, in removing that incentive, and aid 
to the formation of national parties. 

We cannot well over-estimate the benefit to be rendered by such a plan 
toward the healthful action of our Government, in the obtaining our Presi- 
dent by a different mode from that by which we get the members of Congress. 
The severance of that identity of political fate and interest, which now unites 
them so closely, cannot but be greatly promotive of the proper independence 
of Congress. A member could never be deemed as even impliedly pledged 
to the support of an undesignated and unascertained man who might chance 
to be placed in the chair. He could have no fear of his constituents in with- 
holding his support where he did not think the President deserving it. The 
fate of his own political party, even, would not depend upon the good or ill 
success of the Administration of a President so chosen. It would be a great 
point gained, thus to restore and secure the independence of Congress. That 
once done, I am yet to be convinced that the President has too much power. 
I have no fear of temporary power, when its exercise is subject to restraint 
and proper responsibility. All arbitrary and irresponsible power (whether 
great or small) I hold in abhorrence. Sufficient power in the Government is 
a first want of every society. The want of sufficient energy is the exception 
taken by all foreign speculators to our form of Government. The most en- 
lightened among them think it could not even exist in jtuctaposition and 
actual territorial contact with powerful monarchies. The theorizing of all 
the more enlightened teaches that unity of action, and great concentration 
of power in a single Executive head, are indispensable to adequate energy 
in a government. In a government of limited powers, and lacking many of 
the elements of strength common to most others, would it be wise to weaken 
the Executive department if it can be avoided ? 

I have lo«t nearly all the fears with which I was educated, of the centripe- 



LETTERS ON THE PRESIDENCY. 495 

tal tendency of our system, except in the effects to bo produced by political 
party action upon it. This forms so obviously hirge a portion of the power 
of the Federal Government, as to cause an occasional mis<:;iviiip; as to the 
eligibility of Mr. Hillhouse's scheme, from the fear tliat in breaking up our 
national parties it might take away an element of essential strength. The 
working of the system under the operation of parties, is not merely to remove 
the natural counterpoise presented in the power of the State authorities, but 
to bring them in as aids to that of the dominant party in the National Gov- 
ernment. The machinery of State Governments present such ready means 
of organized and efficient opposition to encroachments on the part of the 
Federal Government, that I have long since been convinced that we have 
nothing to fear from centralization, except through the omnipotent and un- 
controllable power of partyism. That is the only despotism we have as yet 
had to encounter, and the only one we thus far have seen any cause to dread 
in the future. 

Whether the Ilillhouse plan, or any modification of it, will ever be adopted, 
I know full well is very improbable. But my doubts rest not where yours and 
Judge Marshall's seem to lie. I have no mistrust of the Anrtue and intelli- 
gence of the great body of the nation. My trust in its patriotism is unquali- 
fied and unbounded. My convictions undoubting, that no mere prejudice for 
or against any form of Government, whilst the essentials of republicanism are 
preserved, will ever prevent the nation from yielding its assent to any change 
that the combined intelligence of the country may recommend as necessary to 
its well-being. I could cull six men from the two parties of the day who, by 
uniting in the recommendation of some such plan, I believe, would carry it 
without fail. But, in all probability, no such six men will ever be brought to 
unite in such recommendation. If the thing is ever done, it will be by the 
people acting from their primary assemblies upon the politicians. The respon- 
sibility of the first move will never be assumed by the politicians themseh'es. 
Every man I meet with, who has served any time in Congress, undisguisedly 
expresses the opinion that either the Union or the republican structure of the 
Government is short-lived. One of them recently remarked to me, that of all 
the dangers threatening it, ninety-nine in the hundred arise from contests for 
the Pi-esidency. Such is the general tone of feeling of the intelligent men 
with whom I have intercourse. Yet we find no one in or out of Congress 
making a serious efiFort to retard this downward tendency. The subject is too 
large, and the danger too remote, for men without official or personal influence 
to bestir themselves. Those having such influence will not hazard their pop- 
ularity by any such untried issue before the people. They console themselves 
by assuming the fact that it would not succeed, and it would, therefore, be a 
profitless personal sacrifice to make the effort. 

jNIy belief is, that you, in common with all others, who have Avritten on the 
subject, ascribe too much influence to the lust for office, in the formation of 
national parties, and in producing their excesses; though, perhaps, too much 
cannot be ascribed to the power of patronage, in obtaining and preserving the 
dominance of party. Party spirit alone, with the passions it engenders, is 
capable of any excess, without the stimulant of such motive. The most bitter 



496 LETTERS ON THE PRESIDENCY. 

party contest ever carried on In this country, within my experience, was in this 
State, under circumstances that forbid the ascription of lust for office to either 
party. The great body of the people cannot be banded into parties for the 
mere pursuit of office ; but, after they are so banded from any other cause, 
party spirit enables their leaders to use them, as they are used, in the mere 
pursuit of office for those leaders. Some fancied public good is the motive 
with the many ; that of the spoils with the few alone. The mere office-holders, 
or office-seekers, constitute a very meagre minority of either party. 

If the lust for office be the main-spring to our party formation and action, 
then it seems to me your plan would be inadequate ; because, if even success- 
ful to the extent proposed, it would remove only a small portion of the spoils 
of party warfare. From any estimate I can make, the whole patronage of the 
Federal Government, throughout all its departments, is not the tenth part of 
those spoils, — the main body of them lying in State and corporation offices, jobs, 
and employments. Your scheme would reach no part of these. 

Large as would be the aggregate deduction from the direct patronage of the 
President, yet view the thing in detail, and you will perceive how inadequate 
the scheme is to produce the great result anticipated. For instance, there are 
in Kentucky some half dozen post-offices worth the having; the office of mar- 
shal not worth much now; and that of district attorney worth perhaps six 
hundred dollars, as the sum total of all his patronage that would cease to ope- 
rate upon the people of Kentucky. Its utter inadequacy to produce any serious 
influence upon them, you will at once perceive. The amount of the same sort 
of patronage, to influence the adjoining States of Ohio, Indiana, and Tennes- 
see, is about in the same proportion. Yet in no part of the Union are the 
party conflicts fiercer than in these States, nor is there anywhere more cor- 
ruption in the elections. S. S. NICHOLAS. 

Hon. R. M. Sherman. 

Note. — A strikin;; illustration of the correctness of the view taken in the last letter, as 
to the power of mere patronage, has been afforded, since it was written, by the oxperienoo 
of President Tyler. When that gentleman left the Whig party he could not control ten 
votes in both Houses of Congress, notwithstanding he held at his disposal the entire patron- 
age of the Government. It goes also to prove the correctness of the author's view taken 
in the Letters on the Presidency, that the whole of the direct powers of a President, in 
their incidental bearing upon the legislative department, are as nothing in comparison to 
his power as head of the party which elected him- 

No. n. 

The following letters from William II. Crawford and Chief Justice Marshall 
give their opinions upon the Hillhouse plan for obtaining a President by a lot 
drawn among the senior class of Senators : 

Woodland, June 4, 1830. 

My Dear Sir, — I recollect distinctly the propositions of amendment to the 

Constitution, which you submitted to the Senate twenty-two years ago, and which 

I then seconded. At that time I had not made up my mind definitely upon 

the principle of the amendment. Reflection and experience have convinced 



LETTERS ON THE PRESIDENCY. 497 

me that the amendment is correct. I am now entirely convinced that f^rcat 
talents are not necessary for the Chief Magistrate of the nation. A moderate 
share of talents, with integrity of character and conduct, is all that is neccs- 
saiy. ***** But I am not certain that the nation is prepared for 
such an amendment. There is something fascinating in the idea of Kele(;ting 
the fii-st talents in the nation for the Chief Magistrate of the Union. The view 
which ought to decide in favor of the principle of your amendment is seldom 
taken. The true view is this: Elective Chief Magistrates are not, and cannot, 
in the nature of things, be the best men in the nation ; while such elections 
never fail to produce mischiefs to the nation. 

The evils of such elections have generally induced civilized nations to sub- 
mit to hereditary monarchy. Now, the evil which is incident to this form of 
Government is, that of having the eldest son of the monarch for ruler, whether 
he is a fool, a rascal, or a madman. I think no man, who will reflect coolly 
upon the subject, but would prefer a President, chosen by lot out of the Sen- 
ate, to running the risk of having a fool, a rascal, or a madman, in the eldest 
son of the wisest and most benevolent sovereign that ever lived. "When the 
amendment is considered in this point of view, I think it will find favor, espe- 
cially when it must be admitted that the selection of a President in this man- 
ner will be productive of as little turmoil and agitation, as the accession of the 
son to the father in hereditary monarchies. The more I reflect upon the sul> 
ject, the more I am in favor of your amendment. 

I am, dear sir, your friend and most obedient servant, 

WM. II. CRAWFORD. 



Richmond, May 2G, 1830. 
My Dear Sir, — I have just returned from North Carolina, and had this 
morning the pleasure of receiving your letter of the 10th, accompanying your 
proposition for amending the Constitution of the United States, as to the mode 
of electing the President, and your speech made on that subject in the Senate 
in 1808. I read your speech when first published with great pleasure and 
attention, but was not then a convert to either of the amendments it suggested. 
In truth, there is something so captivating in the idea of a Chief Executive 
Magistrate, who is the choice of the whole people, that it is extremely difficult 
to withdraw the judgment, from its influence. The advantages which ought 
to result from it are manifest; they strike the mind at once, and we are unwil- 
ling to believe that they can be defeated, or that the operation of choosing can 
be attended with evils which more than counterbalance the actual good result- 
ing from the choice. It is humiliating, too, to admit that we must look, in any 
degree, to chance for that decision, which ought to be made by the judgment. 
These strong, and apparently rational convictions can be shaken only by long 
observation and painful experience. Mine are, I confess, very much shaken; 
and my views of the subject have changed a good deal since 1808. I consider 
it, hiiwever, rather as an affair of curious speculation than of probable fact. 
Your plan comes in conflict with so 'many opposing interests, and deep-rooted 
prejudices, that I should despair of its success, were its utility still more 
apparent than it is. 

63 



498 LETTEKS ON THE PRESIDENCY. 

All those who are candidates for the Presidency, either immediately or 
remotely, and they are the most powerful members of the community, will be 
opposed to it ; the body of the people will also, most probably, be in opposi- 
tion ; for it will be diflacult to persuade them that any mode of choice can be 
preferable to election, mediate or immediate, by themselves. The ardent 
politicians of the country, not yet moderated by experience, will consider it 
as an imputation on the great republican principle, that the people are capa- 
ble of governing themselves, if any other mode of appointing a Chief Magis- 
trate be substituted for that which depends on their agency. I believe, 
therefore, that we must proceed with our present system, till its evils become 
still more obvious, perhaps, indeed, till the experiment shall become imprac- 
ticable, before we shall be willing to change it. 

My own private mind has been slowly and reluctantly advancing to the 
belief that the present mode of electing the Chief Magistrate threatens the 
most serious danger to the public happiness. The passions of men are in- 
flamed to so fearful an extent, large masses are so embittered against each 
other, that I dread the consequence. The election agitates every section of 
the United States, and the ferment is never to subside. Scarcely is a Presi- 
dent elected, before the machinations respecting a successor commence. 
Every political question is affected by it ; all those who are in office, all those 
who want office, are put in motion. The angriest, and I may say the worst, 
passions are roused, and put into full activity. Vast masses, united closely, 
move in opposite directions, animated with the most hostile feelings toward 
each other : what is to be the effect of all this ? 

Age is, perhaps, unreasonably timid. Certain it is that I now dread con- 
sequences, which I once thought imaginary. I feel disposed to take refuge 
under some less turbulent and less dangerous mode of choosing the Chief 
Magistrate ; and my mind suggests none less objectionable than that you have 
proposed. We shall no longer be under the bannei-s of particular men. Strife 
will no longer be excited when it can no longer effect its object; neither the 
people at large, nor the councils of the nation, will be agitated by the all-dis- 
turbing question. Who shall be President? Yet he will in truth be chosen 
suhstantially by the people. The Senators must always be among the most 
able men of the State. Though not appointed for the particular purpose, 
they must always be appointed for important purposes, and must possess a 
large share of the public confidence. If the people of the United States were 
to elect as many persons as compose one Senatorial class, and the President 
was to be chosen among them by lot, in the manner you propose, he would 
be suhstantiaUy elected by the people ; and yet such a mode of election would 
be recommended by no advantages which your plan does not possess ; in many 
respects it would be less eligible. 

Reasoning a priori, I should undoubtedly pronounce the system adopted by 
the Convention the best that could be devised. Judging from experience, I 
am driven to a different conclusion. I have, at your request, submitted ray 
reflections to your private view, and will only add that I am, with great and 
respectful esteem, your obedient servant, 

J. MARSHALL. 



LETTERS OX THE PRESIDENCY. 499 



No. III. 

Under our present mode of nominal elections by the people, our Presidents 
were formerly appointed by Congressional caucuses. That mode becoming 
obnoxious, and under the pretext of bringing the appointing power nearer to 
the people, those caucuses were abandoned, and the appointing power trans- 
ferred to party conventions. Those conventions, by repetitions iluriug the 
last twenty-five years, have become a permanent institution, which promises 
to remain as durable as the elective system. Any proposed change in the 
plan for obtaining Presidents needs only to be compared with that institu- 
tion. The only question as to any new plan is, whether it be preferable to 
that institution. 

It would be profitable, if space allowed, to reproduce here Colonel Benton's 
dagiierreotupe of the Cincinnati Convention. That picture will serve equally 
well for any similar convention of a dominant party that wc shall ever have. 
In the absence of that picture, and to avoid the imputation of drawing one for 
a purpose, the following extracts will be given from a recent number of that 
temperate, discreet paper, the New York Times. The editor is commenting 
on the recently attempted reform movement in Baltimore and " part}- despot- 
ism," as exemplified in our City Governments. It will stand for a full-length 
portraiture of what our whole system of Government, National and State, has 
become, or soon will be, under the influence of "party despotism," wielded 
through party conventions. It is also a fair portrait of the manner in Avhich 
most party conventions are gotten up. 

" Their governments have been seized by professional politicians, and are 
wielded, not for the public good, but for their own emolument. The tribunals 
of justice have ceased to have authority, even when they are not themselves 
used to screen the crimes it is their duty to punish. Public office is made the 
spoil of rapacious ruflians, and the public treasure becomes the stimulus and 
the reward of this base ambition. 

"All this has been brought about under the forms and by an abuse of the 
powers of republicanism. The people elect their own rulers, — and the pal- 
pable, practical result is, that the people elect scoundrels and vagabonds to 
make their laws and to put them in execution. Naturally enough the ene- 
mies of republicanism jump to the conclusion that the people are not compe- 
tent to govern themselves, — that they have neither the virtue nor the intelli- 
gence requisite to the proper discharge of the high functions of government, 
and that anything like progress in the best sense of the word is utterly im- 
possible under popular institutions. If the evils under which our cities groan 
are not removed, democratic government, so far as our great cities are con- 
cerned, may justly be pronounced a failure, — for as things are now they Iiave 
no government worthy of the name. 

"The people of Baltimore have indicated the origin of these evils by the 
character of the remedies they propose. They begin by discarding utterly 
the authority of political parties to control their votes for city officers. As 
things are now managed, the actual power of electing local rulers is vested in 



500 LETTERS ON THE PRESIDENCY. 

the corrupt and irresponsible caucuses and conventions which shape the action 
and select the candidates of the political parties of the day. The " primary 
meetings," at which delegates to the nominating conventions are appointed, 
control the whole machinery. Being outside the provisions of the law, every 
man may vote as often as he likes, — handfuls of tickets may be thrown into 
the boxes — the inspectors may falsify the returns, and any other act of vil- 
lainy nec(^sary to control the result, may be perpetrated with entire impunity. 
Political swindlers begin, therefore, by getting control of these meetings ; 
that step gained, the rest follows as a matter of course. The delegates meet 
in convention, and nominate their candidates, for whom every man of the 
political party to which they belong feels bound to vote, as a matter of politi- 
cal duty. So long as this rule oi partisan loyalty holds, we can never have 
good municipal government. The thieves, bullies, rowdies, gamblers, and 
miscellaneous vagabonds of a great city can always afford the time and money 
needed to obtain control of the primary meetings, and, as an inevitable con- 
sequence, they will always remain the ruling classes. 

" There is but just one way to end all this, — and that is precisely the way the 
people of Baltimore have resolved to adopt. The dictation of political con- 
ventions must be repudiated. 

" The people never have been ripe for a real reform. They have never really 
cared more for a good Government than for a party triumph. They have never 
desired clean streets, a good police, orderly ways, safe walks, and the thousand 
luxuries of a well regulated society, as much as they have desired the empty 
honors of a party victory. 

" The root of the whole evil lies in the assumed obligation of men to vote for 
their party candidates. As long as this obligation is acknowledged it will be 
utterly impossible to have a decent Government in any city where there is 
plunder enough to make stealing profitable. And until the great mass of the 
honest portion of the people in Baltimore, in Philadelphia, and in New York 
are ready to repudiate a principle of action which degrades and disgraces as 
much as it robs and injures them, they must submit to just such consequences 
as they now experience." 

N"o. IV. 

PARTY DESPOTISM, EXCESSES, AND CORRUPTION. 

The national experience on these subjects, during the last twenty years, is 
the most instructive of our whole history, for the purpose of these essays, if a 
detailed development could be given without offence to many living actors in 
the political scenes of that period. But as the object is to conciliate a hearing 
from men of all parties, those recent topics can only be scantily and briefly 
reviewed. 

The prediction of the foregoing letters as to the development and diffusion 
of the system of "rewards and punishments" or "spoils system" has been 
amply verified. In despite the Whig pledge to "proscribe pi-oscription," the 
predicted "clean sweep" of all incumbents, was only prevented by the early 



LETTERS ON THE PRESIDENCY. 501 

* 

death of President Harrison, and the secession or expulsion of President Tyler 
from the Whig party. Under Presidents Taylor and Fillmore the "clean 
sweep" was made. Since then a formidable nevr party was organized, having 
political proscription and "oath-bound" fidelity to party as tlic very basis of 
its-vitality. Disdaining the simulation and dissimulation of otlier parties, it 
frankly avowed proscription of opponents and obedience to party dictation as 
political duties necessary to the attainment of power. Thus all parties have 
followed the lead of the Democracy. The "spoils system" everywhere pre- 
vails and has become a j^erma/iCH^ national institution. It has ceased to receive 
any of that popular censure with which it was, only twenty years ago, so 
bitterly denounced, and is acquiesced in as a supposed necessary evil. 

As a means for corrupt party supremacy, the system has received astound- 
ing increase of power and perfected development. To stimulate exertion and 
pay party debts, men even of the successful party are thrust from office to 
reward others of the same party, who have either been more active, or are 
more friendly toward an incumbent President. Thus, the incentive to activity 
from lust of ofilce is nearly doubled. But this additional insecurity of tenure 
in minor offices depreciates their value to incumbents, and induces the efibrt 
to make the most of them whilst they last. During the first forty years of the 
Government there was very little fraud or peculation among minor office-hold- 
ers — not more than among the officers of commercial corporations, such as 
banks and insurance companies. The permanency of tenure gave such value 
fo the offices as to deter incumbents from peculation. 

Not trusting to the zeal of office-holders, their active exertions and pecuni- 
ary aid at elections are rigorously and openlj' coerced by party discipline. 
This was formerly attempted to be kept secret, and was stoutly denied by the 
party press. The fact having become too notorious for denial, it has been un- 
blushingly avowed and attempted to be justified by the official party and Presi- 
dential organ. Such examples are sure to be followed by other parties when 
they attain power, and this too will become part of the "permanent national 
institution." 

These forced contributions are not confined to officers, but extend to contractors 
and bidders for contracts with Government. It accidentally leaked out in proof 
before a committee of the last Congress, that a single contractor residing in 
Massachusetts contributed $16,000 toward carrying the Pennsjdvania elections 
of 185G. The system is carried out in the State and City Governments. This 
has become so common in some of the States that all disguise is thrown aside, 
all offices are regularly assessed beforehand, according to their supposed lucra- 
iiveness, and when accepted it is with the distinct understanding that a speci- 
fied sum shall be annually contributed for carrying the elections. A single 
office in the gift of the Governor of Louisiana, which yields nine thousand dol- 
lars, it is credibly stated, is assessed at the enormous sum of three thousand 
dollars annually. This is probably much above the usual rates of taxation, 
on account of the extra lucrativeness of the office, yet the instance is illustra- 
tive of the searching diligence with which heavy taxation is enforced upon 
the officers, to the extent of their supposed capacity. A memorable instance 
is cited, and generally believed to prove, that offices can be bought from the 



502 LETTEllS ON THE PRESIDENCY. 

» 
party by voluntary subscription to its corruption fund. The instance is that 
of a wealthy man of foreign birth, who, for a very large subscription, stipu- 
lated to receive, and upon the success of the party did actually receive, a spe- 
cified foreign mission, without any publicly known claim or pretension to the 
office, party or otherwise. 

It is said that voluntary contributions by those who are neither office-holders 
nor office-seekers for themselves, are so systematized as to give the contributors 
a share of the patronage, for the benefit of dependent relatives. The rapid 
subscription of three or four hundred thousand dollars by the moneyed men 
of New York, for the purpose of operating upon the last Presidential election 
in Pennsylvania and Indiana, has been accounted for in that way by persons 
claiming to be among the initiated. Those who obtained the subscriptions — 
upon what show of authority is not known — promised to subscribers the nomi- 
nation of an office of a particular grade in the custom-house or post-office, in 
the event of party success. No complaint has been made of the non-compli- 
ance with these engagements ; and the presumption is that the contributors 
have been compensated as promised. 

Whether these things be true or not, the general credence given to them as 
facts, shows the point to which, in public estimation, the election of President, 
with its attendant " spoils system," has brought, or soon will bring, the Gov- 
ernment. 

To appreciate the extent of the corruption, we need only look to the recom- 
pense which the perpetrators of fraud and violence at elections have received 
from dominant parties and their high officials. Look at the distinguished po- 
sition attained by men notoriously connected with the most infamous election 
frauds, and who are to be the probable recipients of still higher position. 
Look at the public reception given by a President of the United States to that 
infamous " Empire Club" of hireling foreigners, whose boast it was that they 
had secured his election by driving native citizens from the polls. The noto- 
rious captain of this gang of ruffians, who, the newspapers tell us, was brought 
back in irons from New Orleans to New York, under an indictment for felony, 
has been a stipendiary of the Government ever since that reception, holding 
lucrative office when his party is in power, and now enjoying an office of high 
responsibility and trust. ■ Thus was inaugurated the system of violence at 
elections under the auspices of the chief of a dominant party. Look at the 
immunity and countenance extended by one party to Know-nothing outrages 
at elections, and that extended by another party to the marauding usurpation 
of the government of Kansas, to say nothing of the efibrt to maintain the 
" Lecompton swindle," that grossest of election frauds. 

To appreciate the unscrupulous despotism of party, see a Northern Presi- 
dent, Senators, and Representatives, substantially affirming, by their official 
acts, that while Kansas had population enough to be admitted into the Union 
as a slave State, it had not half enough to be admitted as a free State. On 
the other hand, witness the Republican party in Congress refusing to permit 
the repeal of the tyrannical territorial legislation of Kansas, because the 
repeal, whilst it relieved the people of the Territory from oppression, would 
also relieve the Democracy from the odium of that legislation, and the e9"ort 



LETTERS ON THE PRESIDENCY. 503 

to stop the Governmental supplies. "Witness the effect of party coercion upon 
such an enlightened, self-reliant statesman as Senator Hammond, who was 
compelled to vote for the " Lecompton swindle," whilst, as he has since con- 
fessed, he was fully convinced that it was saturated with fraud. Other Sena- 
tors were no doubt similarly coerced, but they have not had the manly candor 
to publicly confess the f;xct. AVitness also the conduct of both those parties 
in reference to the multifarious murders and atrocities of the civil war in 
Kansas, censuring or excusing them with an exclusive eye to their party 
bearing. If we needed an illustration of the extremes to which party spirit 
will drive men, let the atrocities of that civil war testif)-. 

Let us cease to wonder why the ballot-box has become the foul, polluted 
thing that it is. The publication of 1840 pi-edicted the advent of the " no 
distant day when all our elections will be settled by the purse." That day 
has already come. If our system of Presidential elections is kept up, the day 
is not distant when the heaviest taxation which property-holders will have to 
pay will be their contributions towards corrupting the elections. 

But there is the possihle, and, in the estimation of very many discreet, in- 
telligent men, ihc prohahle, coming of even a darker day than that. It is the 
day when the powers of the judioiai'y shall become part of the spoils of party 
victory. "Within the last twenty years the progressives have persuaded most 
of the States to throw their judicial offices into the corrupt scramble of the 
ballot-box ; and nearly all their judges are appointed by party conventions, — 
that, too, with an almost exclusive eye to the politics of the persons appointed. 
IIow long will it be before the managers of these conventions -wWl hunt for 
and find persons for these appointments who will use the powers of their offices 
for party benefit? Mr. Madison said, with the assent of all his hearers in the 
first Congress, that the President who should dare to turn out an officer on 
account of his politics would deserve and receive impeachment. Yet we see 
the point of corruption to which party contests have already brought the spoils 
system. Human nature affords no guarantee that the same corruption will 
not reach the administration of the law. Human nature, when under the 
influence of partyism, gives every reason to fear that the judicial, like the 
Executive, officers will gradually fall into the use of their powers for party 
purposes. Men of the first character and intelligence, within and without 
the legal pi'ofession, are affirming that this is not a mere prospective danger. 
They boldly affirm that the influence of party is already displayed injudicial 
decisions. Few men look for strict impartiality in a judicial decision upon 
any question involving party politics. If this be true now, it cannot be long 
before impartiality will cease wherever the private interests of an influential 
partisan are involved. A large majority of our elected judges are still no 
doubt far above party influence, but those who give sucli strong reason for 
believing that they judicially act un<ler that influence, furnish the proof that 
such men can be found by party managers. All experience proves that there 
is no excess or debasement to which party managers Avill not resort, un<ler 
the influence of party zeal. Every man of ordinary intelligence must know 
that a foul, polluted ballot-box is not the place to procure honest independent 
judges. 



504 LETTERS ON THE PRESIDENCY. 

Nothing can be more necessary than an earnest effort to redeem the ballot- 
box from its present state of pollution, by relieving it from the action of party 
excesses. Presidential elections being the principal cause of those excesses, 
nothing can be more important than that the governing minds, in and out of 
Congress, should address themselves to the task of discovering some eiEcient 
and acceptable substitute for those elections. 

There is one movement the progress of lohich is perfectly certain and infalli- 
hle ; and that is, the progress of corruption in any Government ruled by a cor- 
rupt ballot-box. Another thing equally certain is, that the people ivill resort to 
any other mode of despotism ]}romising an honest jiidiciarif, to relieve themselves 
from that despotism of party which shall rule them through a corrupt judi- 
ciary, administering the law under party dictation. 

Men will seek refuge in any form of despotism to escape from v\''hat the 
Grecian sage terms "the worst of tyrannies, the tyranny of a multitude of 
tyrants." So said our own Franklin. The excess of party ism resulting from 
contests for the Presidency is that ^'fcetus of a Icing" which he dreaded. 

Note. — Since the foregoing was sent to press, the newspapers inform us of the adop- 
tion of the following resolution by the Legislature of Tennessee. It embraces one of the 
topics that the writer did not handle in detail for fear of giving offence to many living 
men of the two principal parties. It is also indicative of the fact that the nation is being 
awakened to a proper sense of the deleterious effects of the excess of partyisra in scram- 
bles for the Presidency. 

"Resolved, That in the opinion of this General Assembly, all the evils growing out of 
the present intense slavery agitation — all the discord, alienation, and bitter hatred, now 
growing up and extending between the North and the South, — are the legitimate fruit, 
not of any necessary and "irrepressible conflict" between free and slave labor, but of a 
conflict between rival aspirants in the race of ambition. North and South, urged on by an 
inordinate greed of official power and plunder — a conflict which can only be repressed 
by a powerful and successful efi"ort by the friends of the Union to rouse the people to a 
conviction of the reality and magnitude of the impending dangers to its existence." 

No. V. 

A PLAN FOR OBTAINING OUR PRESIDENTS WITHOUT TQE INTERVENTION OF POLITI- 
CAL PARTIES. 

Amend the Constitution so as to procure the formation of an Electoral Col- 
lege, and an election of President and Vice-President, substantially as follows: 

1. The people of the States having less than a million population, to elect 
one; those with a million, but less than two millions, to elect two; those Avith 
two, but less than three millions, to elect three ; those with three, but less 
than four millions, to elect four ; and those having four millions, to elect five 
Electors. 

2. The Chief Justice, or Speaker of the Senate, or Speaker of the House of 
Representatives, to be the presiding officer of the Electoral College thus 
formed, and have the casting vote in all cases of tie. 

3. The Electors to be listed in the alphabetical order of their names ; and 
arranged, according to that order into six classes, as nearly equal in numbers 



LETTERS ON THE PRESIDENCY. 505 

as may bo, and numbered from one to six. Any surplus numbers to be dis- 
tributed among the classes by lot. 

4. Class one to nominate an Elector from class two ; the latter from class 
three ; the latter from class four ; the latter from class five ; the latter from 
class six, which shall nominate from class one. 

5. From the six Electors thus put in nomination, Uto to be drawn by lot, 
from whom the College to elect one for President and the other to be the Vice- 
President. 

6. No office to be incompatible with that of Elector. 

Since the recent pulilication of this plan, its proposer has been made aware 
that it does not sufficiently carry with it its own explanation, even fur men of 
the very highest intelligence. 

1. The nominaiioii by classes out of prescribed classes. — This is indispensa- 
ble to prevent any particular names from being placed by party concert 
among the six out of whom the lot is to take the two from whom the College 
is to elect the President. If the selection of the six were made in any mode 
from the entire College, they would be the prominent favorites of the con- 
tending parties. The idea is to preclude all ceriaiiUi/ of ai^y particular names 
being carried in among the six, such preclusion being indispensable to the 
whole scheme of avoiding as far as possible, the influence of party combina- 
tions and individual ambition. 

2. Not permitting the College to elect any one of the six. — This could not be 
done, because the majority party would be almost certain to have one, if not 
two, of the six, who of course would be elected by that party. To prevent 
this the drawing of the two by lot is interposed. This gives scmie chance that 
neither of the two may be of the majority party, and more than 6qual chance 
that both of them will not. This chance of minority success, and this preclu- 
sion of all certainty in conferring the office on any one of five or six party 
favorites, it is believed, will take away much, if not all, inducement to the 
formation or keeping up of parties having for their principal object the acquisi- 
tion of the Presidency. 

3. Not talcing the President by lot from the ichole six without any confirma- 
tory vote of the College. — The only objection to this is that it would be less 
likely to receive popular sanction, than the plan proposed. There is a possi- 
bility that one of the six might be incompetent and the lot fall on him. The 
chances that there might be two such, and the lot fall on both of them, are 
infinitesimally small. The true plan would be to have only four classes, four 
Electors put in nomination, and the President drawn by lot from the four. 
This would effectually preclude a party majority in the College from con- 
trolling the result. That would be an indisputably efficacious remedy. The 
only doubt as to its claim to preference is, whether it would be equally accept- 
able to the patient. 

4. Not reducing the veto power to what it is in most of the States. — This ought 
to be done, as suggested in the Letters on the Presidency, to preclude the 
chance of having the settled policy of a large majority of the nation thwarted 
during a whole Presidential term. It has not been added to the plan out of 



506 LETTERS ON THE PEESIDENCY. 

deference to Southern prepossession in favor of the veto power. Leading 
Southern statesmen have successfully inculcated upon the South, that the 
povrer was essential to the protection of its peculiar local interests. If right 
in that, those interests ought to induce the advocacy of the proposed plan, as 
it will keep the veto power out of the certain reach or control of the mere 
majority of numbers. It is not only a good but a practicable substitute for 
the dual Executive which Mr. Calhoun so earnestly advised as needful to the 
South. The veto has no conservatism in the hands of a mere party President. 
The adoption of the plan ought, and probably would, soothe much of the South- 
ern discontent, which principally arises from jealousy of that preponderance 
of power, which enables the North to take and hold the Presidency whenever 
it is sectionally combined. As this sort of jealousy was the occasion of the 
first formation of sectional parties at the time of the "Missouri restriction," 
and as contests for the Presidency have been the occasion of their more recent 
reproduction, we might well calculate that such parties would cease, when 
their principal incentive is removed by the adoption of some such plan. Con- 
sidering the utter impossibility of preserving the Union under a prolonged 
sectional administration of the Government, the North can well afford, for the 
sake of peace and other national benefits, to forego the mere sectional benefit 
derivable from its superior power in President-making under our present sys- 
tem. The adoption of the plan affords the North the opportunity for an hon- 
orable and magnanimous waiver of the sectional contest, whose prolongation 
carries with it so much peril to the Union. 

There is a natural proneness to disintegration and subdivision of parties, 
in the absence of some such strong cohesive principle as sectional excitement, 
or the pursuit of spoils. The adoption of the plan would promote this ten- 
dency ; and should the result be many minor parties, instead of two great 
ones, the composition and action of the Electoral College must be all that 
could be desired. 

JN^o. VI- 

LETTER FROM HON. B. R. CURTIS, 

Formerly an eminent Justice of the Supreme Court of the United States. 

Boston, November 19, 1859. 

Dear Sir, — I have carefully considered the plan for the election of Presi- 
dents and Vice-Presidents, which you sent to me. I think it would be wise 
to adopt it, with the slight modification of striking out the Chief Justice, as a 
presiding officer. I would not have the Chief Justice in any Avay connected 
with the choice of the President. 

If this plan should work no other change than the withdrawal of the selec- 
tion of the President fi-om conventions of party politicians, whose appoint- 
ment is most commonly the result of intrigue and faction, and whose conduct 
is, for the most part, governed by the selfish desire to obtain offices and emolu- 
ments for themselves and their friends, it would, in my judgment, be a great 
improvement, whose effects would be felt throughout our public affairs. Your 
plan would effectually deprive such conventions of the power they have 



LETTERS ON THE PRESIDENCY. 507 

usurped, and place it in the hands of representatives of the people, chosen 
under such circumstances as -would be likely to secure the best men, of what- 
ever party might be in the ascendancy, in the several States. 

The selection would then be made, not only by those appointed by the peo- 
ple to make it, but from those whom the people themselves had made eligible 
for these oflBces of President and Vice-President. And while the probability 
of obtaining suitable persons to fill these offices would be increased, tlie means 
l)y which they Avould be obtained would remove the incumbents, certainly 
further than they are now removed, from the corrupting influences which, I 
believe, are trying so severely the institutions of government under which 
we live. I have not overlooked the danger of placing in the office of Presi- 
dent one whose policy and views are not approved by a majority of either 
House of Congress, which might often occur under your plan. But I think 
the embarrassments arising from such a result would be lessened, and I should 
hope almost removed, by the diminution of party spirit and the introduction 
of more just and independent views among the members of Congress, which 
this new mode of electing the President may bo expected to bring about. 

On the Avhole, I have far more confidence in the wisdom of the proposed 
change, than I have in the disposition of the politicians of the present day, 
to be willing to give it a fair trial. Whether, against what I fear will prove 
their united opposition, the people can be made to consider it fairly, and 
decide wisely, concerning it, others can judge far better than I can. But I 
have confidence that the people are too honest, and too intelligent, to allow 
the present state of things to continue, and their Government to become, as 
it is fast becoming, morally unsound, and habitually unfaithful to their best 
interests. 

Some change, for better or worse, must come ; and, for one, I am willing to 
try the plan you propose. 

A'ery respectfully, your obedient servant, 

B. R. CUPtTIS. 



LETTER FROM HON. WILLIAM A. GRAHAM, 

Of North Carolina, formerly Secretary of War. 

IIiLLSBOROUGU, N. C, January 18, 18G0. 
Dear Sir, — It is greatly to be desired that some mode should be invented 
to rid the country of the fierce and never-ending struggles for political power 
•which attend the elections of President of the United States. The commen- 
tators on the Constitution, from the authors of the Federalist down to tliose 
of the present day, have warned us that this was the weak point of our system ; 
and that if ever the internal tranquillity of the nation shall be disturbed, and 
its liberties endangered, it will be upon this very subject. Your scheme strikes 
me with great favor, in its general outlines, as likely, if adopted, to allay ex- 
citement, secure Chief Magistrates of competent abilities, and free from the 
trammels of partisan proscription, and obligations to cliques and cabals. A 
President designated for the office according to this scheme, from among the 



508 LETTERS ON THE PRESIDENCY. 

chosen men of the States, partly by chance, but chiefly from the election of 
men, every one of -whom should be his peer, would enter upon his duties, it 
must be presumed, with a large share of the public confidence, with no spirit 
of revenge toward opponents, and enlarged views both as to those duties, 
and of public policy. But its chief merit, in my view, consists in its putting 
out of the way of the ruling President all temptation to endeavor to secure 
the succession to himself, or to assign it to any other individual. Whilst the 
majority of the Electoral College would probably be of the party dominant 
in the then House of Kepresentatives, yet the Electors being chosen by States 
on general ticket, this would not be absolutely certain ; and if it should so 
turn out, the uncertainty is to the two on whom the lot would fall in the draw- 
ing ; and then as to the choice between them for the first and second offices, 
by the College, would efi"ectually guard against Presidential interference, and 
the success of every intrigue or combination. It would wholly exclude from 
consideration the modern qualification of availability, while, at the same time, 
it must be admitted that it would deprive the country of the power of con- 
ferring the Presidency as a reward for the eminent services of a particular 
benefactor. When, however, it is remembered, that the office exists only for 
the general welfare, and that it is no part of our policy to confer place merely 
for the preferment of the incumbent, this objection is outweighed by the ad- 
vantages secured. 

The difficulty lies in reconciling the public mind to its adoption. Though 
such a result was not contemplated by the framers of the Constitution, the 
present mode of appointing the President has resolved itself, in effect, into 
what appears to be a popular election ; and extending, as it does, over a vast 
territory with several millions of electors, party machinery has been devised, 
and professional politicians are habitually employed, in stirring the question, 
either of the election of a President, or the choice of a candidate. It will be 
urged, therefore, that you propose to take from the people the right of choosing 
their Chief Magistrates, which they now enjoy. The fallacy of this assertion 
is in part demonstrated in your exposition, in which you appropriately ob- 
serve, that although the present mode of appointment ostensibly gives the 
choice to the people, it in fact confers the election upon party conventions. 
For that, the people have really no option, except to take or reject the candi- 
dates offered by such conventions. Besides this, there is the alternative pro- 
vision, that if there be a failure of any candidate to obtain a majority of the 
Electoral votes, the choice shall be made by the House of Representatives, 
each State having an equal voice. 

But perhaps a more comprehensive reply to this objection would be, that 
in no point of view is this election made by the people of the United States 
en masse, in analogy to the election of a Governor or other public officer, of 
a State ; but the Electoral Colleges being chosen by majorities of the people 
in each State, a President may be elected with a large majority of the people 
of the States, in the aggregate, against him ; and without this confederate fea- 
ture in the mode of making the appointment, the Constitution never could 
have been adopted. 



LETTERS ON THE PRESIDENCY. 509 

Under the new scheme, tliorefore, as uuJer the ulJ, the people of the several 
States would choose the Electors of President and Vice-President ; with no 
power, it is true, to designate the precise persons, as at present, for whom 
such Electors should cast their votes, but with an assured confidence, on the 
part of each voter, that if his favorite Elector should not reach the hi^h sta- 
tion (for which every one Avould stand his chance), the choice could not fall 
on an unworthy or incompetent man. 

I have not leisure for further reflections, but with proper guards against 
extraneous influences in the Electoral College, such as requiring it to sit with 
closed doors, its members to take an oath of qualification, and to despatch its 
■whole business at a single sitting, I think the proposed plan greatly prefera- 
ble to the existing regulations for the appointment of these high officers of 
the Government. 

With much respect, your obedient servant, 

WILLIAM A. GRAHAM. 

Hon. S. S. Nicholas, LouiaviUe, Ky. 



LETTER FROxM HON. WILLIAM C. RIVES, 

The distingidslied Senator from Virginia, and Minister to France. 

Castle Hill, January 9, 18G0. 

Mv Dear Sir, — I received a few weeks since, through the medium of our 
friend, Mr. Crittenden, a copy of 3-our plan of a new constitutional process for 
the election of President. 

I have availed myself of the first moment of leisure left me by many urgent 
engagements of business at this season of the j'car, to read it with the atten- 
tion it deserves. The result of my best reflections upon it is, that its adoption 
■would be an improvement of incalculable value upon the practical working 
of the present mode of election. There is no part of the Constitution whose 
operation in practice has been so contrary to its theory, and the original design 
of its founders, as that which relates to the election of President. This de- 
parture from the pure theory of the Constitution has been brought about 
mainly by the continuance of political machinery, extrinsic to the Constitu- 
tion, and overpowering it by the self-constituted dictatorship of party con- 
ventions. 

The great recommendation of your plan is, that it breaks up tliis presump- 
tuous and dangerous usurpation ; restores to the people the virtual choice of 
their Chief Magistrate by a process guarded against every improper influence, 
and presenting every guarantee for a wise and virtuous selection ; that it puts 
an end to those multiplied and disgraceful corruptions which spring from tiie 
agency and schemes of interested party managers ; reinstates the checks and 
balances provided b}" the Constitution to maintain the mutual and salutary 
independence of the different departments of the Government ; and, lastly, 
secures the Union and the States from the danger that now so fearfully 
threatens them in the hostile array of geographical parties, mustered mainly 



510 LETTERS ON THE PRESIDENCY. 

by the ardent, organized contests, under the present system, for the grand 
prize of the Presidency. 

With these impressions of the general principle and tendency of your plan, 
I shall be most happy to see it receiving the serious attention of the ruling 
minds of the nation, better able to judge its merits as -vrell as to decide its 
fate, I remain, my dear Sir, with great respect, 

A^ery truly and faithfully yours, 

W. C. RIVES. 
Judge S. S. Nicholas, Louisville, Ey. 



CRIMINAL CODE. .011 



CHAPTER XXI. 

1850. 

CRIMINAL CODE. 

Chapter XII. of an Act Codifying the Criminal Law of Keniuchj, u'ith Ap- 
pendices thereto, and the Introductory Address to the Leyisluture, 

No. I. 
To the Honorable, the Crencral Assembly of Kentuchj : 

The new Constitution having required the Legislature to 
procure the framing of a code of criminal procedure, it could 
only have been from inadvertence, or the want of acquaintance 
with its perfect practicability, and facility of accomplishment, 
that a codification of the law of crimes, and their punishment, 
was not also required. The enjoining the performance of the 
pre-existing duty as to the one cannot absolve the Legislature, 
but rather points to the necessity for performing the equally 
imperative and much more important duty as to the other. A 
code of criminal procedure, as it is of such inferior importance, 
should be but a sequence or pendant to a previously adopted 
code of crimes and penalties. To ensure the proper execution 
of a code of criminal procedure, it would seem even to be 
required that it should be preceded by the adoption of a code 
of crimes and penalties. 

To enable the Legislature to perform this duty at its next 
session, the accompanying act has been prepared. There was 
some room to doubt whether it came within the commission 
of the board appointed to revise the statutes, and still greater 
reason for the doubting whether such a mode of revising the 
penal statutes would be acceptable to the Legislature. It has, 
therefore, been prepared by the undersigned, not as a com- 
missioner, but as a private citizen, printed at his own expense, 
and is respectfully submitted by him alone for the considera- 
tion of the Legislature. 



512 CRIMINAL CODE. 

The value and importance of such a work, if properly exe- 
cuted, scarcely needs vindication at this day. That we should 
have to look to the unwritten law of a foreign country, for so 
important a part of our legal system, is an universally admitted 
evil. The extent of the evil may not be fully knoM^n to the 
uninitiated. 

The common law to which we have to look, in order to find 
our criminal law, is said by the highest authority to be " the 
general customs of England." " The monuments and evi- 
dences of those legal customs are contained in the records of 
the several courts of justice, in books of reports, and judicial 
decisions, and in the treatises of learned sages of the profes- 
sion, preserved and handed down to us from times of the high- 
est antiquity." " These maxims and customs are known, and 
their validity determined by the judges, who are the deposi- 
tories of the law, the living oracles, who must decide all cases 
of doubt." 

The value of such "monuments and evidences" in ascer- 
taining from judicial' decisions what the law is, may be judged 
by the notorious fact that thousands of decisions in England 
and America " have been overruled, doubted, or limited in 
their application," by subsequent decisions. The value of the 
aid aftbrded by "the treatises of learned sages of the profes- 
sion" may be estimated from the fact, that no two of them 
scarcely agree in the precise same definition of any crime. The 
value of such aid is still more strikingly illustrated by the fact, 
that, in the formation of four modern criminal codes, by learned 
and competent men, scarcely a single definition of any crime 
has been found to be given with such clearness and precis- 
ion, by any decision or treatise, as to be worthy of legislative 
adoption. 

The following language on this subject is used by Living- 
ston : " These oracles, it must be remembered, are not given 
like those of the sybil, in writing ; but, like most of those of 
antiquity, orally. The judge seldom or never writes his de- 
cisions. The words of inspiration are caught by the reporter, 
and he publishes them. Hear what Blackstone says of the 
credit to be given to these reports : 'From the reign of Henry 
the Eighth to the present time, this task of reporting has been 



CRIMINAL CODE. 513 

executed by many private and cotcmporar}' hands, wlio, some- 
times through haste and inaccuracy, sometimes through mis- 
take or want of skill, have published very crude, and imper- 
fect, perhaps contradictory accounts of one, and tlie same 
determination.' 

"Admit, then, that the judge pronounces the true precept 
of law, we have no security that it is properly recorded. A 
word omitted, or transposed, may alter the whole sense of the 
rule. "We have thus some idea of that law to which we are 
referred for the definition of offences. We see that it consists 
in unwritten rules, promulgated by judges, who are often in- 
correctly reported, whose decisions are of uncertain authority ; 
to be followed, according to some writers, however unjust or 
absurd ; and, according to others, to be modified by the prin- 
ciple of reason, and the divine law, — that is to say, by the caprice, 
bigotry, or enthusiasm of the judge. 

" But where, again, are these precepts and principles of the 
common law to be found ? In voluminous reports, which it 
requires great diligence to collect, very large sums of money 
to purchase, a long life to read, and a superhuman intellect to 
understand and reconcile with each other, when they are read. 
They are to be found in commentaries on, and abridgments 
of these reports, scarcely less voluminous ; in which precedents 
and arguments may be found for almost every position that 
can be taken by sophistry, or required for an indiscriminate 
defence of right and wrong. Add to this, that these sources 
of information are not accessible to one man in ten thousand, 
if even to a single man in the whole State, and we have a con- 
dition of things approaching to that which is justly designated 
as a badge of abject slavery, a people governed by unknown 
and uncertain laws." 

As our Court of Appeals has no supervision of criminal cases, 
we have no reported decisions of our own criminal law. Each 
circuit judge has to grope his own way through this labyrinth 
to ascertain what is the law. The consequence is, that we may 
be said to have, to some extent, as many systems of penal law 
as circuit judges. They willingly receive aid from the reported 
decision of any English or American judge, or from any ele- 
mentary writer of either country. These foreign judges and 
65 



514 CRIMINAL CODE. 

writers do, therefore, more or less, make criminal law for Ken- 
tucky, even at the present day. Surely nothing can be more 
important, or more imperatively required at the hands of the 
Legislature, than to rescue our criminal law from this obscurity 
and uncertainty. 

The following remarks of Livingston, in favor of a code of 
procedure, are equally pertinent in favor of a criminal code : 

" The first dictates of common sense inform an individual 
that he has a right to defend himself. The law imposes the 
obligation on him of defending others, and of enforcing the 
execution of the law. Magistrates and executive officers are 
required to prevent, or arrest violence and depredation ; and 
the military force is told, that it must assist the civil power 
when legally called on. All this the general language of the 
law gives the citizen to understand. But in our State it has 
never deigned to make such a record of its will, as may enable 
any one to discover the boundary between legal acts and trans- 
gression. There is either no written law for our direction on 
these points, which it is so much our interest as parties, mag- 
istrates, or citizens to know, or it is so dispersed in difterent 
books, so uncertain when it is found, and of such doubtful 
authority, as to render it unsafe for any one to trust to his own 
opinion, or in many cases to that of others." 

Blackstone says : " The knowledge of the nature, degree, 
and extent of every crime, and its penalty, is of the utmost 
importance to every individual in the State ; no rank or eleva- 
tion in life, no uprightness, no prudence should tempt any man 
to conclude that he may not, at some time or other, be deeply 
interested in the knowledge. The infirmities of the best among 
us, the vices and ungovernable passions of others, the insta- 
bility of all human affairs, and the numberless events that a 
day may bring forth, teach us that it is a matter of universal 
concern to know what the law has forbidden, and what it has 
enjoined." 

How are our citizens to obtain this necessary knowledge, 
unless the Legislature affords them the means for its acquisi- 
tion ? The previous remarks are sufficient to satisfy even those 
least informed on the subject, that it is a mere mockery to refer 
us to the unwritten law of England. No lawyer in the State 



CRIMINAL CODE. . 515 

will SO far expose his ignorance, or presumption, as to pretend 
to know what that law is, in most cases, or even with the 
utmost diligence, and research, that he can certainly ascertain 
what it is in all cases. This is a state of things which should 
not exist in any civilized country, and especially not in a Repub- 
lic, which should always be a Government of law, of lixed, 
ascertainable, certain law, leaving as little as possible to the 
arbitrary discretion of those who administer it. The English 
themselves have become satisfied of the truth and importance 
of this principle, and are about to discard their unwritten 
criminal hiAV, and adopt a written criminal code. It would be 
a singular reproach to the intelligence of the people of these 
States, if the English Parliament should be allowed to lead 
the Legislatures of all our States, in making so necessary a 
law reform. 

That the reform has remained so long unattempted among 
us is believed to have been from no want of general sense of 
its value and importance, but from the intrinsic difficulties 
which belong to the subject, and which have heretofore been 
so far beyond the management of ordinary legislation. Those 
difficulties no longer present an insurmountable obstacle. The 
facilities for such* a work, within the access of every Legisla- 
ture, are now such as to enable every State to obtain such a 
written code for itself, without danger of any very material 
inaccuracies or deficiencies. 

Our distinguished countryman, the late Edward Livingston, 
after several years of laborious preparation, presented to the 
Legislature of Louisiana a complete system of penal law, con- 
taining "a code of crimes and punishments," "a code of pro- 
cedure," " a code of evidence," " a code of reform and prison 
discipline," and " a book of definitions." It is written through- 
out with so much clearness and precision, and with such copious 
illustrations, that it would have been, as it was intended to be, 
its own all-sufficient expositor. The system, and its accom- 
panying reports, fill a volume of about seven hundred and fifty 
closely printed octavo pages. Taken as the result of the un- 
aided eftbrts of a single mind, that volume is a proud and 
enduring monument of his industry, his learning, and his 
talent. It deservedly places him at the head of the eminent 



516 CRIMINAL CODE. 

jurists of liis age. Nowhere else can the true principles of 
criminal jurisprudence be so well learned, nowhere else have 
they received so beautiful, so comprehensive, and, at the same 
time, so minute a practical illustration. But his system never 
has been, and probably never will be adopted as a whole. He 
unfortunately undertook too much. His reformation was too 
thorough. He not merely undertook the total abolition of all 
capital punishment, but graduated his penalties with a view to 
a system of prison discipline, which required an expense that 
few, or none of the States, were prepared or willing to meet. 
His great work must, therefore, remain as only the rich store- 
house from which other men, with humbler aims, can extract 
the materials for minor works of perhaps more practical 
utility. 

Some ten years after the publication of his work, a board 
of learned English lawyers, at the head of whom was the bril- 
liant historian, Thomas B. Macaulay, after two years prepara- 
tion, published the plan of a "penal code for India." The 
code, with its notes and accompanying report, is replete with 
evidences of the highest order of vigorous original thought, 
legal acumen, and intrepid legal criticism. Its proposed re- 
forms are urged with an intelligent daring which, while it 
startles, extorts from the mind unqualified admiration and 
praise. But with all its merits, the India code must serve 
rather to point out the needful reforms, than as a practical 
exemplification of the mode of efiecting them. 

The Legislature of Massachusetts appointed a board of legal 
gentlemen to reduce so much of the law of that State as related 
to crimes and their punishment to a written code. The result 
of their labors was, after several years, reported in the form 
of a statute. Its rules are given with great clearness and pre- 
cision, and are accompanied in the text with copious illustra- 
tions or exemplifications taken from adjudged cases. As a 
reproduction of the common law in the form of a statute, the 
work is one of most singular fidelity and exactness. The ac- 
companying notes and very extensive citation of authorities, 
give the highest evidence of profound learning and the most 
extended research. 

Some ten years ago, a board of learned lawyers was ap- 



CRIMINAL CODE. 517 

pointed by the English Government to prepare a digest of the 
written and unwritten law of England, relating to the defini- 
tion of crimes and their punishment. This hoard, after i)artial 
reports from year to year, finally closed this part of its labors 
by a statute reported to Parliament in 1848, but recommended 
the postponement of its adoption until it could be accompanied 
by a code of criminal procedure not then prepared. This 
statute bears the strongest internal evidence of the Icai-niiig 
and ability of those who framed it, and of an enlightened 
liberal spirit worthy of the age. Its fault, if it be permissible 
to a person so much its debtor to suggest a fault, is, that it 
gives the mere naked rule without any exemplification or illus- 
tration to aid in its construction. 

With the great and invaluable aid of these four codes, the 
accompanying act has been prepared. Iso rule or definition, 
with few exceptions, has been given without the authoritj^ of 
at least one, if not two of those codes. From the great learn- 
ing and ability of those who framed them, from the great time 
and labor used in their preparation, and from their general 
agreement with each other in matters of most importance, it 
may be confidently hoped that the act contains no very mate- 
rial error or omission. It is believed to embrace not only every 
common law offence, proper to be retained, but also all our 
penal statutes of a general character, except those relating to 
elections, marriage, gaming, slaves, etc., which it is deemed 
best to treat, as heretofore, in separate chapters on those sub- 
jects. 

The English code, on account of its superior brevity and 
compactness, was selected as the principal model for the accom- 
panying act. Most of its rules and definitions, when adopted, 
have been taken in the very language used, with slight abrevi- 
ation and alteration, for the double reason that they needed 
no amendment, and because, by so adopting them, we shall 
have the benefit of learned English decisions and comnienta- 
taries in fixing their proper construction. 

The act creates no new offence. It merely defines and fixes 
the penalties for offences noAV punishable by law. 

Ail the more material alterations in the common law are 
fully noted in the appendix, so that the Legislature may readily 



518 CRIMINAL CODE. 

perceive the extent of the proposed changes, and the reasons 
for making them. 

Tlie whole act, and especially the part relating to penalties, 
has heen framed with a view to the mitis-atino- of the law in 
such a way that it would be enforced by juries. It proceeds 
throughout upon the principle that a light penalty, properly 
enforced, is much more efficacious in the suppression of crime 
than the niere threat of a heavy penalty seldom or never 
enforced. 

The penalty of death has been given to only two offences 
not now so punished — that is, to treason and to perjury, when 
it causes death. Capital pvmishment is taken away in man}'' 
cases where it is now required, and even in large classes of 
cases. 

Other penalties have, in few or no cases, been enhanced, 
except to make them properly correspond with the penalties 
prescribed by our statutes for analogous cases. 

The most numerous penalties, and those which will strike 
the casual reader as most severe, are those which are now fixed 
by no statute, and are punishable under the common law by 
fine and imprisonment at the discretion of a jury. These 
are generally regulated to not more than one years' imprison- 
ment, or not more than one thousand dollars fine, or both. It 
is very difficult to anticipate the legislative will on this subject. 
There is probably no one of those offences which, in its most 
aggravated form, is not deserving of the maximum of those 
penalties, yet for a majority of them, in their usual form, that 
maximum Avould be excessive. It was thought that almost 
any limit upon the discretion of the jury was better than none; 
and in fixing a limit we must always take care that it be 
high enough, adequately to punish the most aggravated form 
of the offence. We can only trust to the juries and the courts 
that the discretion will not be abused. At any rate we have 
the consolation, that if the limit be too high, we shall still im- 
prove the law as it now stands, for a high limit is better than 
none at all. But if the Legislature should think that an unne- 
cessarily wide discretion is left to the jury, it can be reduced 
in all that class of cases by a short amendment. 

It is feared that many members of the Legislature will have 



CRIMINAL CODE. 519 

less objection to any of the proposed alterations in tlie la^v, 
than to yielding a direct legislative recognition to various parts 
of tlie act, which are, in feet, but a mere repetition of what the 
law now is. To all such objections there is the one sufficient 
answer, that none of us are responsible for that part of tlie law, 
that it is equally the law, and will so remain though the act be 
not passed, and that all necessary reforms cannot be eftected 
at a single effort. If tested by the question whether there is not 
some one or more such things in the act to which each member 
objects, it probably would not receive a single vote in either 
branch of the Legislature. But that is obviously not a fair test. 
The only true question is, will the act, as a whole, substantially 
improve the law, and will there be a general benefit in having 
it thus written out, so that every one can have a chance of 
knowing and understanding what is the law ? One of the sub- 
stantial benefits of the act is, that we shall know exactly what 
the criminal law is ; and if there be parts which, upon consider- 
ation, shall be found not deseiTing legislative sanction, they 
can be advisedly, from time to time, pruned away or altered. 
The objectionable part is exposed distinctly to view, by itself, 
so that its repeal or alteration will not, through inexpert legis- 
lation, expose other parts to unintended injury, and the Legis- 
lature can always see and understand the full extent of any 
proposed change. 

It will be perceived that it is not proposed to repeal directly 
any part of the common law, except so far as the act necessa- 
rily and unavoidably operates a repeal. This is out of abun- 
dant caution to guard against any possible omission in the act. 
It will be time enough to repeal the common law when the act 
shall have been in force for fifteen or twenty years, and by the 
test of practical experience prove itself to be an adequate and 
ample substitute. 

If the act is adopted, it will necessarily have to undergo the 
revision of the revisors that are to be appointed at the next 
session. Its adoption will force it upon the attention of the 
whole State ; and if, upon thorough examination, it is proved not 
worthy to be retained, or not in accordance with public senti- 
ment, the Legislature will have ample time to repeal it before 
it can do any injury, as it does not take effect until the first of 



520 CRIMINAL CODE. 

May, 1852. But tliat is an event not to be anticipated. "With 
the perfecting it will receive at the hands of the revisors, it 
cannot fail to meet the public approval. If it is rejected at the 
next session, the revisors will, of course, understand that nothing 
of the sort is desired by the Legislature, and they will substi- 
tute an ordinary revision of the penal statutes. The presenta- 
tion of the act for the consideration of the Legislature ^vill, 
therefore, in neither event, produce any delay in the comple- 
tion of the work of the revisors. K it is adopted, it is pre- 
sumed that the code of criminal procedure will be in readiness 
to go into operation at the same time. 

Should it be found to contain some objectionable features, it 
is to be hoped that they will not occasion its entire rejection. 
Many such can be easily reformed and modified so as to suit 
the legislative will, without impairing the value of the whole. 

It would be gross presumption to suppose that it contains no 
errors or imperfections ; yet, it is confidently believed, that 
they are not so numerous but what the superior wisdom and 
vigilance of the Legislature and the revisors will readily detect 
and remedy them. But be the errors and imperfections of the 
act what they may, they cannot possibly be so great that it will 
not afford us a far better system of criminal law than that 
under which we are now living. 

It is believed to be a foundation upon which a perfect crimi- 
nal code may be gradually reared. The whole act, or at least 
some of its more important chapters, should be subjected to a 
periodical revision, by a board of revisors, of at least once in 
every ten years. After three or four such revisions, if not ren- 
dered perfect, it will be so improved by legislative exposition 
and elucidation, as to leave very little to judicial discretion in 
its construction. To obviate all necessity for the exercise of 
any such discretion, is an unattainable point of perfection, in 
any mere human legislation. Every succeeding effort must 
approximate us still nearer to that point. It is none the less 
our duty to make such efforts, although we know beforehand 
that the actual point of perfection can never be attained. In 
a Republic proclaiming the proud boast that it is a Government 
of law, it is a peculiar duty of the Legislature that its criminal 
law, which so intimately affects the life, liberty, and property 



CRIMINAL CODE. 521 

of eveiy citizen, should be as certain as it can be made by 
human industry and skill. An uncertain or unasccrtainable 
law is the same as no law, and it is the very essence of tyranny 
to punish men by ex post facto legislation. Xor is it any the 
less a tyranny that such legislation may happen to proceed from 
a jury or a judge. It is the prerogative of freemen that they 
shall be judged by the law, and not by the mere arbitrary will 
of any man or set of men. A great authority has said : "A 
loosely-worded law is no law, and to whatever extent a Legis- 
lature uses vague expressions, to that extent it abdicates its 
functions, and resigns the power of making law to the courts 
of justice." How much worse is it when the law is not worded 
at all, but has to be groped for through hundreds of books and 
through thousands of decisions of uncertain and doubtful au- 
thority, and wherever found is so loose and vague as invariably 
to throw more or less upon the discretion of the judge ! 

It no longer remains a matter of mere conjecture whether 
our criminal law can be beneficially rendered much plainer 
and more certain than it now is, by a written code. The fact 
has already been proved by each of the four codes referred to. 
The accompanying act is offered as an additional proof and 
exemplification. It not merely defines every crime, but settles 
many perplexing and much disputed questions. Still, it is so 
compact and brief that it will occupy but little more room in 
the statute-book than our penal acts now do. It is comprised 
within so small a compass that every legislator can, in the 
course of a few hours, read it through and judge it for him- 
self. It will be for future legislators to determine whether it 
shall be improved and expanded into a complete and perfect 
code. In the interim, it cannot fail to be of most essential 
benefit toward the better understanding and administerins: 
of our criminal law. 

A great benefit anticipated from the adoption of the act, is 
the making our criminal law undeniably a part of the law of 
the land. It is a common and most successful stratagem used 
by criminal advocates, to persuade the jury that the common 
law of homicide was adopted in a remote and barbarous age, 
under a despotic government, for the control of serfs ; that it 
is unsuited for the government of freemen, and that it has 



522 CRIMINAL CODE. 

never received tlie direct sanction of the people understand- 
ingly given. The placing it upon the statute-book, at once 
makes it the law of the people of Kentucky, of their own 
enacting, and forever silences this plausible pretence. It can- 
not but have a salutary efi'ect in making jurors act up to their 
duty in enforcing the law. 

All which is most respectfully submitted. 

S. S. NICHOLAS. 

No. n. 

HOMICIDE AND OTHER OFFENCES AGAINST THE 
PERSON. 

ARTICLE I. 

Of wJiat Homicide the Law takes Cognizance. 

Section 1. Homicide is the destruction of the life of one 
human being by the act, procurement, or culpable omission 
of another. 

1. The " life " must have been complete by birth. 

2. It is not essential to such "life," that the umbilical cord 
should be separated, or that the circulation of the child's blood 
should be distinct from that of the mother. 

3. The "destruction" must result from bodily injury, as 
contradistinguished from death occasioned by mere influence 
on the mind, or by any disorder or disease arising from such 
influence. 

As where death ensues from mere words or signs operating 
on the imagination or passions. 

4. If words or signs calculated to produce an act which will 
cause death, are used, and they do cause an act which destroys 
life, it is "homicide." 

As when a blind man or stranger in the dark, is directed to 
a precipice, where he falls and is killed ; or a verbal direction 
is given to take a drug which it is known will prove fatal, and 
it does cause death. 

5. The "procurement" may be by any intermediate agency: 
as that of an infant of tender years, an idiot, a lunatic, pit-fall, 
concealed spring-gun, etc. 

Or, by any mode : as poisoning the air of a room in which 



CRIMINAL CODE. 523 

a person is asleep or confined, starvation, or exposing an infant 
or other helpless person to be frozen, etc. 

5. The " culpable omission " may be by the failure to dis- 
charge any legal duty which causes death. 

As the assumed duty of physician, nurse, carrier, jailor, 
master, guardian, etc. : or, that growing out of the relation of 
the parties, as parent and child, husband and wife, etc. 

It is also a " legal duty " when imposed by law, or its omis- 
sion gives cause for civil action. 

6. The " act of another " must cause the destruction. There- 
fore, suicide is not embraced by the definition : the honest 
advising another to commit suicide, is not, but the aiding him 
in its commission is homicide. But if committed under the 
influence of dishonest advice, or if its commission is promoted 
by wilfully false statements, then it is homicide in the adviser 
or promoter. 

7. "Human being" includes every one of the human species, 
though a savage, slave, idiot, lunatic, under sentence of death, 
or an alien enemy. 

8. The death must ensue within a year and a da}-, from the 
time the injury was received, counting the whole day on which 
it was received as one. 

Section 2. It is homicide, although the effect of the bodily 
injury be merely to accelerate the death of one laboring under 
some previous injury, disorder, or disease. 

Section 3. Where the hurt is adequate to cause death, and 
does cause death, it is homicide, although by the use of more 
skilful means a recovery might have been effected. 

Section 4. Where a slight wound is given, which from 
neglect becomes a mortification, and death thereby ensues; 
or, if a slight injuiy from gross mistreatment proves fatal, this 
is not a homicide by him who inflicted the wound or injury. 

Section 5. But when a slight wound or injury proves fatal 
without any plain neglect, or manifestly improper treatment, 
it is homicide. 

Thus, where an artery is cut, and the person bleeds to death 
for want of aid ; or a leg is broken, which compels him to 
remain exposed to inclement weather, which causes disease 
and death. 



524 CRIMINAL CODE. 

Section 6. Compelling a person to do an act likely to cause, 
and which does cause his death, is homicide, though the com- 
pulsion be by threats only, or the command of one having 
power and authority to punish disobedience. 

ARTICLE II. 

Justijiahle or Excusable Homicide. 

Section 1. Homicide is excusable whenever the death of one 
human being caused by another, can be attributed neither to 
negligence nor design, but happens accidentally in the doing 
of a lawful act, by lawful means. 

Section 2. Justifiable homicide is that which is required or 
permitted by law. 

1. As when committed against a foreign enemy, or traitor, 
levying war against the State, or the United States, provided 
it be done according to the laws of war and usages of civilized 
nations, or committed in the lawful suppression of, or resist- 
ance to insurrection, rebellion or riot. 

2. Or, committed in the execution of an unreversed sentence 
of a court of competent jurisdiction, in the manner, at the time, 
and by the person prescribed by law. 

3. Or, upon an officer or soldier of the militia, when in actual 
service, or of the army or navy, in pursuance of the rules and 
articles of war. 

4. Or, necessarily committed in the execution of the lawful 
order of a court, magistrate, or other tribunal, or in the making 
or maintaining a lawful arrest without such order, or in the 
lawfully interposing for the prevention or suppression of any 
offence. 

But, to guard against the abuse of this ground of justifica- 
tion, there must have been a substantial observance, by the 
party committing the homicide, of the rules appended to this 
chapter for the government of officers and others, in executing 
orders, and in making and maintaining arrests. 

Section 3. Homicide is also permitted in the necessary de- 
fence of person, of personal liberty, or of property, against 
attempted or impending unlawful violence. (Appendix A.) 

1. As where the party killing has reasonable cause for be- 
lieving, and believes it to be necessary for preventing the per- 



CRIMINAL CODE. 525 

petration of any feloii}^, attempted to be committed by violence 
or surprise against the person, habitation, or property of tlie 
party killing, or any other. 

But the intent to commit the felony must be apparent from 
acts or acts coupled with words. 

The homicide must be done not only after the felony has 
been attempted, but also before it is completed. 

It is not completed in this sense, whilst the robber is still in 
the presence of the party robbed, though he be in flight with 
his booty; whilst the murderer or ravisher is still committing 
violence ; nor in the case of arson, burglary, and nocturnal 
theft from a house, whilst the offender is still in the building 
where the crime has been committed. 

2. If the crime could have been prevented by means within 
the power and knowledge of the party killing, without in- 
flicting death, and without danger of life, it is not justifiable 
homicide. 

3. Theft, without violence, cannot be justifiably prevented 
by homicide, unless it be to arrest the thief in immediate flight. 
Hence, homicide produced by the setting of any deadly weapon, 
such as a spring-gun, to prevent theft, is not justifiable, unless 
it be set in some house or vessel, so secured that an entry can- 
not be obtained therein but by violence. 

4. Where the offence to be prevented does not amount to 
felony, all reasonable endeavors must be used to avoid the 
danger, or prevent it by other means short of killing. 

5. Homicide is justifiable, where one in lawful defence of 
his person, or liberty of locomotion, repels force by force, and, 
using no more violence than he has reasonable cause for be- 
lieving and believes to be necessary for self-defence, kills the 
assailant. 

Where, from the nature of the attack, the weapon used by 
the assailant, his relative weakness or other circumstances, the 
assailed could have protected himself from serious injury with- 
out inflicting death, or using means likely to produce it, the 
homicide is not justifiable, because not necessary to the dcfonce. 

6. The attack must be such as gives just fear of death, or 
grievous bodily harm, or with a manifest intent, accompanied 
with sufficient apparent force, materially and injuriously to 



526 CRIMINAL CODE. 

deprive tlie party of Ms liberty of locomotion, or to subject 
bim to materially injurious coercion or restraint, in order to 
justify the use of deadly weapons in defence. 

7. Homicide is justifiable wbere one in defence of property 
in his actual lawful possession, repels unlawful force by force, 
and using no more violence than he has reasonable cause for 
believing, and believes to be necessary for the defence of his 
possession, or saving the property from destruction, kills the 
wrong-doer. 

8. The "property" defended maybe real or personal, but 
must be corporeal, and in the actual legal possession of the 
person defending ; but he need not have the absolute right of 
propert}^ 

9. Homicide necessarily done by any one in defence of his 
dwelling-house, or that of another, against destruction, or 
against an unlawful forcible entry therein is justifiable. 

But, if in defence of other property, it is not justifiable, un- 
less done in a personal conflict, growing out of the efibrt to 
make defence against or wrongful entry into, deprivation of, 
injury to, or destruction of the property, or unless such entry, 
deprivation, injury or destruction would be a felony. 

For instance, the shooting of a dog, or a fowl, cannot be jus- 
tifiably prevented by homicide ; neither can the taking and 
carrying away of a horse, without violence to the owner or 
person in lawful possession be so prevented, unless the taking 
and carrying away would be felonious ; but if the owner being 
in the actual possession of the horse, interpose personal resist- 
ance which is attempted to be overcome, he may use any de- 
gree of necessary force to prevent himself from being so forcibly 
deprived of the possession. 

The distinction is between the perpetration, or attempt to 
perpetrate a mere trespass or misdemeanor, without attempted 
or impending personal violence to the owner, and that which 
is accompanied with such violence. 

10. Homicide is justifiable, when one in lawful possession 
of house or land, after requesting another who has no right to 
be there to depart, upon such wrong-doer's refusal to do so, is 
resisted in his endeavor to remove him, and using no more 
violence than he has reasonable cause for believing, and be- 



CRIMINAL CODE. 527 

lieves to be necessary for the removal of such wrong-doer, and 
being, from the violence with which such wroug-docr resists 
his removal, under reasonable apprehension of immediate 
death, or grievous bodily harm, if he persist in his endeavor 
to remove him, kills such wrong-doer. 

Section 4. Homicide in necessary self-defence may be jus- 
tifiable, although the party killing committed the first assault, 
or engaged in an unlawful conflict, which led to the homicide. 
This rule, however, is subject to the following limitations: 

That the party killing did not either commence or provoke 
the attack with intent to kill, or do grievous bodily harm, nor, 
during the conflict, and before the necessity for killing arose, 
endeavor to kill or do grievous bodily harm. 

That he declined further conflict, and quitted and retreated 
from it, so far as was practicable with safety to his life. 

That he killed the assailant because he had I'easonable cause 
for believing it to be necessary so to do, in order to avoid im- 
mediate death. 

Section 5. Homicide is excusable where a party who would 
have been justifiable in killing one person, by mistake or acci- 
dent, and without negligence kills another. 

Section 6. Homicide is excusable where death results from 
an act done in good faith, with intention of affording succor 
or aid to the person killed, without any intention to injure him, 
and without incurring wilfully any unnecessary risk, and with 
the use of all proper caution. 

Section 7. "Where a party has lost the possession of property 
by violence or otherwise, he is not justified, except in the case 
of fresh pursuit after a robbery, in committing homicide in the 
attempt to regain possession. ISTor is the original aggressor 
justifiable in killing in defence of a possession, so wrongfully 
obtained by violence. 

Section 8. Acts of mere retaliation, or revenge, however 
strong the provocation, are never justifiable homicide. 

Section 9. The necessity for the force used in defence, also 
in making or maintaining arrest, or in performing other legal 
duty, shall be judged of according to the circumstances as they 
may have appeared to the party committing the homicide. 

Section 10. Whether the force used in anv defence, or in the 



528 CRIMINAL CODE. 

performance of any legal duty was necessary, or whether it was 
excessive in kind, mode or degree, are questions of fact to be 
determined by tlie jury. 

ARTICLE III. 

Culpable Homicide. 

Section 1. Every homicide that is neither justifiable, or ex- 
cusable, according to the preceding rules of this chapter, is 
culpable, and must be punished. Such homicides are invol- 
untary, negligent, or voluntary. 

Involuntary, or Negligent Culpable Homicide. 

Section 2. AVhere there was no design to kill either the per- 
son killed, or any other, it is involuntary; and if the killing be 
done otherwise than in the performance of a lawful act by law- 
ful means, in a lawful manner, and without negligence or rash- 
ness, it is culpable involuntary homicide. 

If done in perpetrating, or the attempt to perpetrate any 
felony by violence, it shall be punished as murder in the second 
degree, and conviction may be had under an indictment for 
murder. 

If done in the attempt to commit felony without violence, it 
shall be punished by confinement in the penitentiary for not 
more than seven years. 

If done without attempt to commit felony, it shall be pun- 
ished by fine not exceeding five thousand dollars, or by im- 
prisonment not exceeding three years, or close imprisonment 
not exceedmg one year, or by confinement in the penitentiary 
not exceding five years. 

Section 3. Culpable involuntary liomicide not done in the attempt 
to perpetrate felony, is distinguishable from excusable involun- 
tary homicide, b}' reason of some negligence or other fault in 
the person committing it. The degrees of such negligence or 
fault are so various, and of such wide range, that an equally 
large discretion is unavoidably left to the jury, in applying an 
adequate and appropriate punishment. To guard against a 
wanton or inconsiderate abuse of this discretion, the court is 
authorized to reduce the penalty fixed by the jury. 

1. The lowest degree of homicide in this class, is that in- 



CRIMINAL CODE. 529 

flictecl ill tlie perfonnance of a lawful act, in a manner and 
under circumstances where there is no apparent risk of life, 
but without that care and precaution which a prudent man 
would take to avoid the risk of destroying life. 

As bj discharging fire-arms believed not to be loaded, but 
without examination, or without examining whether any per- 
son be within range, or by blasting a quarry in an unfrequented 
place, without examining whether any person is near enough 
to be injured. 

2. A higher degree of the offence is where it is done in the 
performance of a lawful act, but under circumstances, in a 
manner or by means which cause an apparent danger of in- 
flicting death, and \vithout due precaution to avoid such 
danger. 

As where death ensues from the discharge of fire-arms in a 
town ; or from the bursting of a cannon proved in or near the 
highway ; or from the thro\ving of materials from the upper 
part of a house ; or the pulling down of a house in a town, 
without previous examination whether any person be in the 
way, or without the precautions required by the police regula- 
tions of the place, etc. 

3. It is a still higher degree of the offence if done in the 
performance of an unlawful act, and especially if the act be 
itself a penal offence, though not amounting to a felony. 

4. Ranking with the last, and among the highest degrees 
of the offence, is that of any carrier or servant of a carrier, 
for the transportation of persons, rashly periling the lives of 
his passengers, and causing death among them by want of 
proper care, either as to the trustworthiness of any vehicle or 
vessel, or any engine, machinery, or horses pertaining thereto, 
or as to the manner of managing, driving, conducting, or pro- 
pelling the same. 

Section 4. Homicide is negligent whenever death is not wil- 
fully caused, but occurs in any sport or amicable contest, if 
weapons, instruments, or means be used, which cannot be used 
w^ithout probability of grievous bodily harm. AVlien no such 
weapons, instruments, or means are used, the homicide is not 
nefflisrent but accidental. 

67 



530 CRIMINAL CODE. 

Criminal Voluntary Homicide. 

Section 5, Voluntary liomicide is criminal whenever it is 
neither justifiable or excusable, according to the preceding 
rules of this chapter, and must be punished. 

There are two degrees of this crime, extenuated homicide 
and murder. 

ARTICLE IV. 

Extenuated Homicide, or Manslaughter. 

Section 1. Homicide is " extenuated" whenever the killing 
is wilful and not justifiable or excusable, according to the pre- 
ceding rules of this chapter, but the act from which death 
results is attributable to a momentary impulse occasioned by 
passion, arising from sudden and grave provocation, or by fear 
or alarm, which passion, fear, or alarm for the time suspends 
the power of self-control. (See Appendix B.) 

The provocation is " grave " when it is such as would be 
likely to move to violent passion a person of ordinary temper, 
who is of similar age, sex, and condition in life with the ac- 
cused. 

Section 2. When the impulse or want of self-control is the 
result of passion, it will not extenuate the killing of any other 
than the person oifering the provocation, unless it be done by 
accident or mistake. 

Section 3. Whether such passion, fear or alarm existed, 
whether it so destroyed the self-control, and whether it so oc- 
casioned the act as mentioned in the first section of this article, 
are questions of fact to be determined by the jury. (See Ap- 
pendix B.) 

ISTo provocation or injury ought to be deemed to have de- 
stroyed the self-control and produced the impulse, unless the 
homicide immediately ensues the provocation or injury, with- 
out such reasonable lapse of time as would allow the passion 
or fear to subside, so far as to permit the judgment to resume 
its sway of self-control. 

The distinction to be observed by the jury is between the 
indulgence which the law accords to human infirmity under 
the sudden impulse of passion, and which it denies to revenge 



CRIMINAL CODE. 531 

under the influence of Late, liowever bitter, or however <^reat 
its provocation. Tlic law is the only avenger which can be 
allowed in a republic. 

Section 4. Homicide is not extenuated where the offender 
either seeks the provocation as a pretext for killing or for 
doing grievous bodily harm, or where he endeavors to kill or 
do grievous bodil}- harm, whereupon provocation is given. 

Section 5. Ilomieide is not extenuated where the provoca- 
tion arises alone from the lawful making or maintaining of any 
arrest, the lawful execution of any legal order, or the lawful 
keeping of the peace or prevention of crime, or the moderate 
infliction of punishment by a parent or master, on a child, 
sen'ant, or apprentice. 

Section 6. Homicide is extenuated where, upon a sudden 
quarrel, parties fight, and one of them is killed in heat of 
blood, if the killing be attributable to the want of self-control 
caused by the heat of blood. 

Section 7. In such case it is immaterial which party offered 
the first affront, or made the first assault, if the party killing 
did not bring on the fight for the purpose of killing. 

Section 8. Homicide is extenuated, when the wilful act or 
omission from which death results was at the request or with 
the consent of the party killed. (Appendix C.) 

But such homicide shall not be extenuated if the party killed 
is in a state of idiotcy, or is under sixteen years of age, or is 
by reason of unripeness or weakness of mind, or of any un- 
soundness, disease, or delusion of mind, or of passion, incapa- 
ble of fully understanding and appreciating the nature and 
consequence of the act or omission ; or where such consent is 
extorted by the party killing, or obtained by any undue in- 
fluence ; or where he has any reason to believe that such con- 
sent is given, in consequence of some false impression as to 
facts on the part of the person killed, or where the party killing 
has any motive of benefit to himself or another for obtaining 
such consent. 

Section 9. It is extenuated homicide where the parties fight 
upon mutual agreement with deadly weapons or othenvise, and 
one of them is killed, if the party killing was guilty of the use 



532 CRIMINAL CODE. 

of no unfair means, and took no unfair advantage of the other. 
(Appendix C.) 

Section 10. Where an officer, or another acting under insuf- 
ficient warrant or other judicial order for arrest or maintaining 
arrest, in good faith believes such warrant or order to be suffi- 
cient, is forcibly resisted, and using no more force than is legal, 
necessary, and proper to overcome such resistance, happens to 
kill the person resisting, such killing is extenuated homicide. 

ARTICLE V. 

Murder. 

Section 1. Homicide is murder whenever the killing is wil- 
ful, and is neither extenuated, nor justifiable, nor excusable 
within the provisions of this chapter. (Appendix D.) 

Section 2. Perjury, or subordination of perjury, committed 
with intent to destroy the life of any person, and by reason 
whereof such person is convicted and sufters death b}^ the sen- 
tence of the law, shall not be deemed to be murder ; but either 
crime shall be punished with death, or by confinement in the 
penitentiary for life, or for not less than fifteen years. (Appen- 
dix E.) 

Section 3. Murder perpetrated in the commission, or the 
attempt to commit rape, arson, burglary, robbery, abduction, 
or any crime punishable with death ; or committed in unlaw- 
fully resisting any judicial order or process, or resisting the 
making or maintaining any lawful arrest; or committed with 
extreme atrocity or cruelty in the motive or the manner, or in 
regard to the person upon whom it is committed, is murder 
in the first degree, and shall be punished by death. (Appen- 
dix F.) 

1. The atrocity of the motive is indicated when the homicide 
is committed on a judge, juror, or witness, for something done 
in that capacity ; or to obtain a pecuniary benefit for the mur- 
derer or another; or when it is done or procured to be done 
for hire ; or where it is done to prevent a w^itness from testify- 
ing, or to prevent the disclosure of any matter disgraceful to 
the murderer, or his near relation ; or where the trivial nature 
of the provocation, or the absence of any assignable motive, 



CRIMINAL CODE. 533 

betrays extreme malignity and depravity of heart; or in any 
such like case. 

2. The atrocity or cruelty in the manner is indicated when the 
homicide is committed by poisoning, starvation, freezing, burn- 
ing, scalding, smothering, hanging, drowning, lying in wait, 
firing into a dwelling at night, great laceration, or such like 
cruel and unusual mode of killing, indicative of gross malignity 
or depravity. 

3. The atrocity or cruelty in regard to the person killed is indi- 
cated when the homicide is committed on a person over seventy 
or under fifteen years of age by an adult ; on a person asleep, 
or on a traveller on the high road, by a man on a woman, by 
husband on wife, or wife on husband, by parent or grand-pa- 
rent on child or grand-child, by child or grand-child on parent 
or grand-parent, by guardian on ward or ward on guardian, by 
master on an apprentice or apprentice on master, by jailor or 
other officer on prisoner in his custody, by physician, surgeon, 
or nurse on the patient ; or when it is done in violation of any 
such like trust or confidence. 

Section 4. Every murder, except such as is embraced in the 
next preceding section, with its subsections, is murder in the 
second degree, and shall be punished by confinement in the 
penitentiary for life, or not less than five years. 

Section 5. If the jury find the accused guilty of murder, 
they shall say in which degree, and if in the second degree, fix 
the time of confinement. 

Section 6. If the jury think that extenuating circumstances 
take the case out of the spirit or policy of the rule defining 
murder in the first degree, as regards the person killing or 
killed, they may recommend the court to reduce the punish- 
ment to not less than five years' confinement in the peniten- 
tiary, and if the court concurs in that opinion, it may l)e so done. 

Section 7. Criminal voluntary homicide, other than murder, 
shall be punished by confinement in the penitentiary for not 
more than ten years, or by imprisonment for not more than 
three years, or by close imprisonment of not uKn'C than two 
years. To either mode of imprisonment there may bo added 
a fine not exceeding ten thousand dollars, if the fine does not 
exceed one-third the value of the estate of the accused, and 



534 CRIMINAL CODE. 

the excess shall be reduced by the court. Upon a second con- 
viction the offender shall be confined in the penitentiary from, 
six to fourteen years.* (Appendix G.) 

Section 8. Under an indictment for murder, the accused 
may be convicted for any culpable homicide. 

Section 9. When the court thinks the penalty fixed by the 
jury to be excessive, it may, in lieu of granting a new trial for 
that cause, reduce the penalty as to kind or degree, or both. 

ARTICLE VI. 

Other Offences against the Person. 
Attempts to Kill, etc. 

Section 1. "Whoever shall administer to, or cause to betaken, 
by any other person, any poison, or other destructive thing ; 
or shall, by any means manifesting a design to kill, cause bodily 
harm to any other person, with intent in any such cases to 
commit murder, shall be confined in the penitentiary for from 
five to fifteen years. 

Section 2. Whoever shall, by any means manifesting a de- 
sign to kill, other than the actually administering, or causing 
to be taken, poison, or other destructive thing, attempt to com- 
mit murder, shall, although no bodily harm be caused, be con- 
fined in the penitentiary for not more than seven years, or im- 
prisoned not more than three years, or sufier close imprisonment 
for not more than one year. 

Section 3. Whoever shall set fire to, cast away, or in any 
wise destroy any vessel, boat, or raft, with intent to murder 
any other person, or shall maliciously do any such act, whereby 
the life of any other person is put in great danger, shall be 
confined in the penitentiary for from five to fifteen years. 

Section 4. Whoever shall, by any means not hereinbefore in 
this article specified, maliciously put the life of any other per- 
son in danger, shall be imprisoned not more than three years, 
or fined not more than two thousand dollars, or both. 

Section 5. Whoever shall negligently, as hereinbefore, in 
section 3, of article 3 defined, cause danger to the life of 

* See M. and B., 12G6. 



CRIMINAL CODE. 535 

another, shall be imprisoned not more than six months, or 
fined not more than five hundred dolhirs, or botli. 

Section 6. Whoever shall maliciously cause to any other 
person, any grievous bodily harm, shall be confined in the 
penitentiary for not more than six years, or imi>risone(l not 
more than three years, or close imprisoned not more than 
one year. 

And whoever wilfully, maliciously, and l)y lying in wait, 
shall cut out, or disable the tongue, put out an eye, slit the 
nose, ear, or lip, or cut, or bite off either, cut oft', or disable 
any limb, or member of another, with intent, and on purpose 
to maim or disfigure such other, or while fighting, or other- 
wise, shall on purpose pull out, or put out, the eye of another, 
except in necessary self-defence, shall be confined in the peni- 
tentiary from two to ten years.* 

Section 7. "Whoever shall maliciously, by any means mani- 
festing a design to cause grievous bodily harm, attempt to 
cause such harm to any other jDcrson, whether such harm be 
caused or not, be confined in the penitentiary not more than 
three years, or imprisoned not more than one year, or fined 
not more than two thousand dollars, or both so fined and im- 
prisoned. 

Section 8. "Wlioever shall maliciously set or place, or cause 
to be set, or placed, any spring-gun, man-trap, or other engine, 
calculated to destroy human life, or cause grievous bodily 
harm, with intent that the same, or whereby the same may 
kill, or cause grievous bodily harm to any trespasser or other 
person coming in contact therewith ; or shall knowingly, and 
wilfully permit any such trap, gun, or engine which piay have 
been set, fixed, or left in any place in his possession, or occu- 
pation, to continue so set, or fixed in such place, shall be im- 
prisoned not exceeding six months, or fined not exceeding five 
hundred dollars, or both. 

Section 9. The last section shall not make it illegal to set 
any gun, trap, or engine, or to keep it set during the night- 

* M. and B. 12GC), the pecuniary part of the penalty j^iven by the statute 
is inappropriate, as the party injured has his civil remedy. The words, 
"except in necessary self-defence," are adopted on the authority of the act, 
M. and B. 12G8. 



536 CRIMINAL CODE. 

time, in any dwelling, or other building, or in any vessel, where 
an entry cannot be obtained but by force or violence. 

Section 10. Any person who, with intent to procure the mis- 
carriage of any woman, shall wilfully administer to, or cause 
to be taken by her, without her knowledge, any poison or other 
noxious thing, shall be confined in the penitentiary for not 
more than two years, or imprisoned not more than one year. 
If any person aids a woman in any way in producing a mis- 
carriage, he shall be imprisoned not more than one year, and 
fined not more than five hundred dollars, unless such aid be 
rendered in good faith, with the intention of saving the life 
of the woman. 

Section 11. Wliere any white woman shall have been deliv- 
ered of a child, which, if born alive, would be a bastard, any 
person who, by any secret disposition of the dead body of the 
child, whether such child died before, at, or after its birth, 
shall endeavor to conceal the birth of such child, shall be im- 
prisoned not more than one year, and fined not more than a 
thousand dollars. (Appendix H.) 

Rape, etc. 

Section 12. Whoever shall unlawfully and carnally know 
any white woman against her will, and by force, or whilst she 
is insensible, shall be guilty of rape, and shall be punished by 
confinement in the penitentiary from ten to twenty years. 

Section 13. It is rape, although the woman consent to carnal 
knowledge, if such consent be given through fear of death or 
of grievous bodily harm. 

Section 14. A husband cannot be guilty of committing, by 
his own person, a rape on his wife ; but if another person com- 
mit the ofience, he may be liable as an accomplice, for aiding 
or abetting. 

But no person shall be deemed to be a husband where the 
woman shall have been compelled, or shall have been by fraud 
induced to go through the ceremony of a marriage ; and either 
such ceremony shall be a mere nullity, or the marriage shall, 
by reason of such compulsion or fraud, be declared to be void 
from the beginning, by a court of competent jurisdiction. 

Section 15. Whoever, by pretending to be the husband of 



. CRIMINAL CODE. 537 

any married woman, or knowing that any married woman be- 
lieves him to be her husband, shall deceitfully and carnally 
know her, shall be punishable by not more than seven years 
confinement in the penitentiary. 

Section 16. Whoever shall unlawfully and carnally know 
and abuse any white girl under the age of twelve years, shall 
be punished as for a rape. 

Section 17. Whoever shall administer to, or cause to be 
taken by any white woman, any drug or other thing, with in- 
tent to render her insensible, or to produce in her an unnatural 
sexual desire, or such stupor as to prevent or weaken resist- 
ance, in order that, whilst in that state, he or any other may 
unlawfully and carnally know her, shall be imprisoned not 
exceeding two years. 

Section 18. If a man shall commit the crime of carnally 
knowing another man or any beast, he shall be confined in the 
penitentiary from three to ten years. 

Section 19. Any, the least degree of penetration, although 
there be no emission, sliall be sufficient to constitute carnal 
knowledge in the last-named offence, in rape, or in carnal 
abuse of a child. 

Section 20. "Wlioever shall assault any person with the in- 
tent to commit either of the three last-named crimes, shall be 
imprisoned not exceeding three years, or confined in the peni- 
tentiary not more than two years. 

Section 21. An infant under the age of fourteen years shall 
be deemed to be incapable, by reason of impotency, to commit 
by his person either of such three last-named crimes, or an 
assault with intent to commit either of them. 

Abduction, etc. 

Section 22. Whoever shall take away, or detain against her 
will, any woman, with intent to marry or carnally know her, 
or to cause her to be married or carnally known by any other 
person, shall be imprisoned for not more than two years, or 
fined not more than five thousand dollars, or both ; or confined 
in the penitentiary not more than three years. 

Section 23. Whoever shall unlawfully take, whether with or 
without her consent, any unmarried girl, less than sixteen years 
68 



538 CRIMINAL CODE. 

of age, out of tlie possession and against tlie will of her father, 
mother, or other person having the lawful custody and charge 
of her, shall be imprisoned for not more than one year, or fined 
not more than two thousand dollars, or both. 

Section 24. Whoever shall unlawfully lead, or take away, 
or decoy, or entice away, or detain any child, under the age 
of ten years, with intent to deprive the parent, or other person 
having the lawful care and charge of such child, of the posses- 
sion of such child, or with intent to steal any article upon or 
about the person of such child ; or shall, with any such intent, 
receive or harbor such child, knowing it to have been so taken 
or carried away, or detained, shall be confined in the peniten- 
tiary for not more than three years, or imprisoned not more 
than one year. 

But no person claiming, in good faith, to be the parent of 
such child, or to have right to its possession, shall incur such 
penalty. 

Section 25. Whoever shall maliciously send as prisoner, or 
carry any free person out of this State, or any negro who is 
asserting claim to freedom by suit brought, shall be confined 
in the penitentiary not more than three, or imprisoned not 
more than one year. 

And whoever shall, without leave of a circuit or county court, 
knowingly send or carry out of this State any slave who is 
entitled to freedom after the expiration of a time then to come, 
or upon the happening of some future event, shall be impri- 
soned from six to twelve months, and fined not more than five 
hundred dollars.* 

Section 26. "Whoever shall be guilty of any unlawful restraint 
of the liberty of another person, shall be imprisoned not more 
than one year, or fined not more than a thousand dollars, or 
both. 

Section 27. Whoever shall maliciously or negligently cause 
any bodily harm, or do any violence to another, shall incur the 
penalties of the last section. 

Section 28. It shall be justifiable to do or omit anything 
declared to be an off"ence in this article, where, if the act or 



* M. and B. 1293. 



CRIMINAL CODE. 539 

omission had produced death, such death would be justifiahlc 
homicide within the provisions of this chapter, or where the 
killing would not have amounted to negligent homicide. 

Section 29. Whoever shall assault any other person, that is, 
attempt, offer, or menace by gestures, to cause any bodily liarm 
to such person, with the present ability to cause such harm, 
shall be imprisoned not exceeding three months, or fined not 
more than two hundred dollars, or both. 



APPENDIX TO CHAPTER XXI. 

A. 

The rule in the text contains, in a condensed form, the substance of the rules 
as given in the codes and by the different writers of authority. They all turn 
upon the words " necessary defence." Their explanation is made in the sub- 
sections, with the aid of all the codes, and as fully as the subject and reason- 
able brevity permits. Beyond the guides pointed out, the necessity of the 
defence used is unavoidably left to the determination of the court and jury. 

Mr. Macaulay, in his late brilliant history, thus appropriately treats the dif- 
ficulty of the subject : " What casuist, what law-giver, has ever been able 
nicely to mark the limits of the right of self-defence? All our jurists hold 
that a certain quantity of risk to life, or limb, justifies a man in shooting or 
stabbing an assailant ; but they have long given up in despair the attempt to 
describe, in precise words, that quantity of risk. It is to be regretted that the 
nature of words, and the nature of things, do not admit of more accurate 
legislation. But we cannot, on that account, interdict all self-defence." 

The Massachusetts Commissioners use the following appropriate language on 
this subject: "One is undoubtedly justified in forcibly defending his person 
and property against violence. It is not easy to preserve and vindicate the 
sacred right of self-defence, without permitting force that may endanger the 
wrong-doer. It is essential to effective forcible defence, that the party defend- 
ing should have the right to put the life of the wrong-doer in danger. This 
danger must be as great as is necessary to his own defence. It is utterh* be- 
yond the power of legislation and written law to provide and mark out before- 
hand what species and degrees of defence are necessary and proper in all pos- 
sible cases. This is unavoidably a question to be decided in each particular 
case." 

The section in the text, with its subsections, has carried the attempt to de- 
fine and explain the right of defence forther than is done in either of the codes. 
They all materially enlarge the right beyond the restricted limits prescribed 
by the common law. The purpose of the subsections is to prevent the enlarge- 



540 CRIMINAL CODE. 

ment, by the use of general terms, from being carried beyond what was in- 
tended or deemed to be expedient. It is certainly of great importance that 
the extent of the right should be defined, as far as it is practicable to be done, 
without improperly impairing the right. It is believed that the text cannot 
be so misconstrued as improperly to impair the right. 

B. 

The first and third sections of Article IV, Chapter Homicide, are taken with- 
out material alteration from the English code, and are very similar to the rules 
in the Massachusetts code. They contain much the most important alterations 
in the law proposed by this act, and therefore deserve the serious and deliber- 
ate consideration of the Legislature. To aid in their consideration, it may 
be well to give the reasons of the English Commissioners in favor of the change. 
They say: 

" By the present law, the most grievous words of reproach, contemptuous 
and insulting language or gestures, or trespasses against lands or goods, will 
not free the party killing from the guilt of murder, if, upon such provocation, 
he make use of a deadly weapon, or otherwise manifest an intention to kill or 
to do some grievous bodily harm. But if he use a weapon not likely to kill, 
or give a blow merely, and unluckily and unintentionally kill, it will be man- 
slaughter only. These rules appear to us to be unreasonable when the prin- 
ciple is considered upon which extenuation is admissible, viz: the want of 
self-control occasioned by means which, according to the constitution of human 
nature, ordinarily produce this effect. 

" The reasoning of the India Commissioners on the subject seems to be de- 
serving of attention. They say : ' "We agree with the great mass of mankind, 
and with the majority of jurists, ancient and modern, in thinking that homi- 
cide, committed in the sudden heat of passion, on great provocation, ought to 
be punished, but in the general ought not to be so severely punished as mur- 
der. It ought to be punished in order to teach men to entertain a peculiar 
respect for human life ; it ought to be punished in order to give men a motive 
for accustoming themselves to govern their passions ; and in some few cases 
it ought to be punished with the utmost rigor. 

*' ' In general, however, we would not visit homicide, committed in violent 
passion, which has been suddenly provoked, with the highest penalties of the 
law. We think, to treat a person guilty of such homicide as we should treat a 
murderer, would be a highly inexpedient course — a course which would shock 
the universal feeling of mankind, and would engage the public sympathy on 
the side of the delinquent against the law. 

" ' Neither the English law nor the French code extends any indulgence to 
homicide which is the effect of anger excited by words alone. Mr. Livingston 
goes still farther: "No words, whatever," says the Louisiana code, "are an 
adequate cause, no gestures merely showing derision or contempt, no assault 
or battery, so slight as to show that the intent was not to inflict great bodily 
harm." 

" ' We greatly doubt whether any reason can be assigned for this distinction. 
It is an indisputable fact that gross insults, by word or gesture, have as great 



CRIMINAL CODE. 641 

a tendency to move many persons to violent passion as danperous or painful 
bodily injuries; nor does it appear to us that passion, excited by insult, ia 
entitled to less indulgence than passion excited by pain. On the contrary, the 
fact that a man resents an insult more than a wound, is anything but a proof 
that he is a man of peculiarly bad heart. It would be a fortunate circum- 
stance for mankind, if every person felt an outrage whicli left a stain upon 
his honor more acutely than an outrage that had fractured one of his limbs. 
If so, why should we treat an offence produced l)y the blamablc excess of a 
feeling, which all wise legislators desire to encourage, more severely than the 
blamable excess of feelings certainly not more respectable ? 

" 'One outrage which wounds only the honor and the affections is admitted 
by Mr. Livingston to be an adequate provocation. A discovery of the wife 
of the accused in actual adultery is an adequate cause. The law of France, 
of England, and the Mahommedan law, are also indulgent to homicide 
committed under such circumstances. We must own that avc can see no rea- 
son for making a distinction between this provocation and many other prov- 
ocations of the same kind. We cannot consent to lay it down as an universal 
rule, that in all cases this shall be considered as an adequate provocation. 
Circumstances may be easily conceived which would satisfy a court, that a 
husband had, in such a case, acted from no feeling of wounded honor or affec- 
tion, but from mere brutality of nature, or from disappointed cupidity. On 
the other hand, we conceive that there are many cases in which as much in- 
dulgence is due to the excited feelings of a father or a brother, as to those of a 
husband. That a worthless, unfaithful, and tyrannical husband should be 
guilty of manslaughter for killing the paramour of his wife, and that an affec. 
tionate brother should be guilty of murder for killing, in a paroxysm of rage, 
the seducer of his sister, appears to us inconsistent and unreasonable.' " 

" It appears to us," further, say the English Commissioners, " that the prin- 
ciple of extenuated homicide, being ascertained to be the loss of self-control, 
arising from that human infirmity which is so general, and almost universal 
as to render it proper to make allowance for it in admeasuring punishment, 
it is expedient to leave this subject to juries, unfettered by arbitrary distinc- 
tions. According to the present law, there is some uncertainty as to the dis- 
tinct provinces of the judge and jury in such cases ; but the jur^' are precluded, 
in most cases, from considering whether particular circumstances have caused 
that loss of self-control which is natural to humanity. Some of the rules deny 
the benefit of extenuation in the very cases where human infirmity is most 
severely tried. At present, juries are often tempted to bring oases which 
manifestly fall within the principle of extenuation, also within it^ rule, by 
strained presumptions, or direct violations of their oaths." 

The India Commissioners also say, what is equally worthy to be quoted : 
"There is another class of provocations not allowed to be adequate in law, 
but which have been, and while human nature remains unaltered, will be, 
adequate in fact to produce the most tremendous effects. Suppose a person 
to take indecent liberties with a modest female in the presence of her father, 
her breather, her husband, or her lover. Such an assault might have no ten- 
dency to cause pain or danger; yet history tells us what effects have followed 



542 CRIMINAL CODE. 

from such assaults. Such aa assault produced the Sicilian Vespers ; such an 
assault called forth the memorable blow of Wat Tyler. It is difficult to con- 
ceive any class of cases in •which the intemperance of anger ought to be 
treated with greater lenity. So far, indeed, should we be from ranking a 
man, who acted like Tyler, with murderers, that we think a judge would ex- 
ercise a sound discretion in sentencing such a man to the lowest punishment 
fixed by the law of manslaughter." 

The foregoing extracts must satisfy every one, that the law of manslaughter 
rests at present upon no consistent principle of justice or policy. That the 
few instances which it allows as sufficient to destroy self-control, are totally 
inadequate to cover the whole ground ; and by not allowing other provoca- 
tions of equal or greater force to cause a like extenuation, the law is rendered 
not merely intrinsically unjust, but also obviously inconsistent. Having set- 
tled, as all the authorities do, that the governing principle which extenuates 
wilful homicide into manslaughter is the indulgence which the law extends 
to the infirmity of human passion suddenly aroused, it is palpably absurd to 
limit the allowable provocatives to such passion, to a few enumerated par- 
ticulars. The injustice, inconsistency, and absurdity, are all the greater, 
when, as every one knows, the enumeration does not embrace but a very few 
of the highest possible means of human provocation, and that those not 
enumerated very far exceed in number and in gravity those which are speci- 
fied. Besides, what would be adequate provocation for one person, might not 
be so for another. Yet the common law not merely undertakes to settle what 
shall be adequate provocation to destroy self-control in any state of case, but, 
by its procrustian rule, undertakes to measure the susceptibility to ungovern- 
able passion in all persons by the one universal standard. 

Juries have, with the full sanction of public sentiment, for centuries been 
warring against and refusing obedience to such injustice, inconsistency, and 
absurdity. Legislators having for ages in vain attempted to make an en- 
lightened Christian public sentiment yield to the arbitrary injustice of the 
law, have at last condescended to make the law conform to the demands of 
justice and popular intelligence. That it has been proposed to the Parlia- 
ment of England is but another evidence, among very many, of the great ad- 
vantages the modern legislation of that country has derived by calling to its 
aid eminent legal ability, which can dare look beyond the sanctifying influence 
of mere time, and expose the folly and injustice of even immemorial law. 
When the master minds of Livingston and Macaulay came to grapple with 
the sanctified faults of the criminal common law, they were exposed with an 
intelligent daring deserving admiration and all praise. By the mere power 
of talent they have successfully assaulted them, even in their last great strong- 
hold, Westminster Hall. The venerable and thorough trained lawyers of 
England have yielded to the force of their reasoning and are now urging, 
upon Parliament the changes proposed by them. 

The adoption of the change recommended by the English Commissioners 
will produce no practical change of the law in Kentucky. It has always 
been administered here in the very spirit of the rules which they propose. 
Our juries have uniformly refused to be tied by unjust, arbitrary, legal 



CRIMINAL CODE. 543 

dogmas. They have treated the whole sul)ject as a question of mere fact, to ho 
ascertained by the application of their own common sense, withfiut any restraint 
from legal rules. In doing so, they have had not only the approval of tlieir 
own consciences, but the undivided approbation of the communities in which 
they live. This is putting the law to a severe test ; it is exposing its injustice 
in a manner the most unanswerable. But after the juries, in obedience to 
their natural instincts, have thus brought about a practical change in the law, 
much to the horror of learned judges and prosecutors, we find a learned body 
of lawyers from old England, that land of blind subserviency to the law, be- 
cause it is the law, who tell us that our juries have all along been actin<' on 
the right principle with their usurped power, and that it is the law itself 
■which has been wrong. 

The question for the Legislature to determine is, whether we shall longer 
continue the futile effort to make juries and public sentiment bend to the ar- 
bitrary injustice of the law, or whether the law shall not be made to accom- 
modate itself to the demands of justice and enlightened public sentiment. In 
other words, whether every principle of policy does not require tiiat the law 
and its practical administration should not be made to coincide in this parti- 
cular. 

As before remarked, no practical change is made in the law as it is now 
administered in Kentucky, and will be in all time to come. It is but volun- 
tarily conceding to the jury a power which they now usurp. It removes the 
necessity for the pernicious habit that juries have fallen into, of disregarding 
the law in criminal cases. The accused will still have to prove an adequate 
sudden provocation to destroy his self-control, and that he was acting under 
its immediate influence. Remove the necessity for the jury violating the law 
to get at the subject, and they will be more scrupulous in the proper exercise 
of a power directly conceded to them. At any rate, we have the most abun- 
dant reason to know that the matter cannot possibly be worse than it now is ; 
whereas, by the change, an unseemly blemish is removed from the law itself, 
and it may result that juries will become more observant of their duties and 
of the law, when they no longer have to trample on the law in order to attain 
justice. 

Heretofore many a case has met with impunity, because the jury would not 
treat it as murder, and the law would not permit them to treat it as manslaugh- 
ter. Under the new scheme of penalties for this latter offence now proposed, 
they will be much more apt than formerly to inflict some punishment. All 
will agree that some punishment is better than none. They will no longer 
have the salvo to their consciences in giving entire impunity, from the fact 
that it was indispensable to violate the law in order to do justice, and that 
whilst violating it in one particular, it was no great addition to the wrong to 
violate it in another. 

C. 

These two sections, which make killing by consent or in a duel extenuated 
homicide, are taken from the India and English codes, with the cxcnption of 
some additional guard against the abuse of the first rule. The Livingston 
code also says, that killing in a fair duel shall not be treated as murder. This 



544 CRIMINAL CODE. 

seems to be but a necessary consequence of the other rule, which reduces kill- 
ing by the consent of the person killed to extenuated homicide. It is the 
consent given ■which takes away the turpitude of the offence in both cases. 
These changes in the law appear to be right, both on principle and policy. 

The following forcible reasoning of the India Commissioners is also adopted 
by the English Commissioners, in support of the rule concerning killing by 
consent : 

"The motives which prompt to the commission of this offence are very 
different from those which prompt men to the commission of murder. The 
soldier who, at the entreaty of a wounded comrade, puts that comrade out of 
pain ; the friend who supplies laudanum to a person suffering the torment of 
a lingering disease ; the freed man who, in ancient times, held out a sword that 
his master might fall on it ; the high-born native of India who stabs the 
females of his family at their own entreaty, in order to save them from the 
licentiousness of marauders, would, except in Christian societies, scarcely be 
thought culpable ; and even in Christian societies, would not be regarded by 
the public, and ought not to be treated as assassins. 

"Again, this crime is not productive of such evil to the community as mur- 
der. One evil ingredient of the utmost importance is altogether wanting to 
the offence of voluntary culpable homicide by consent. It does not produce 
general insecurity. It does not spread terror through society. When we 
punish murder with such signal severity, we have two ends in view. One end 
is, that people may not be murdered ; another end is, that people may not live 
in constant dread of being murdered. This second is perhaps the more im- 
portant of the two. For if assassination were left unpunished, the number 
of persons assassinated would probably bear a very small proportion to the 
whole population. But the life of every human being would be passed in 
constant anxiety and alarm. This property of the offence of murder is not 
found in the offence of culpable homicide by consent. No man will live in 
fear of a death to be inflicted only with his own consent. We know that two 
or three midnight assassinations are sufficient to keep a city of a million of 
inhabitants in a state of consternation dui'ing several weeks, and to cause 
every private family to lay in arms and watchmen's rattles. No number of 
suicides, or of homicides, committed with the unextorted consent of the person 
killed, could possibly produce such alarm among the survivors." 

In addition to this satisfactory reasoning, it may be remarked that the com- 
mon law could not consistently treat killing by consent as extenuated homi- 
cide, because it treated suicide itself as a felony, accompanied with a forfeiture 
of goods, and an ignominious burial of the corpse. Since our law has abol- 
ished suicide as a criminal offence, this reason no longer exists, and killing 
by consent can be treated on its own demerits, uninfluenced by any matter 
of policy for the prevention of suicide. Every killing by consent is a sort of 
suicide, and whilst it is allowed to be no criminal offence in one of the par- 
ties, it appears to.be manifestly unjust to treat it as the highest degree of 
crime in the other, and to be followed with the severest punishment known 
to the law. The change in the law of suicide, by a parity of reasoning, seems 
to require a change of the law, or a mitigation of the punishment for killing 



CRIMINAL CODE. 545 

by consent. It would be preposterous to contend, on the score of justice or 
policy, that in either of the cases put by Mr. Macaulay, the offence shf.uld be 
visited with the same extreme punishment as that awarded for delibcrato 
assassination. This part of the law obviously needs reform, and it ia pre- 
sumed the Legislature will have no hesitation in making it. 

Much of the foregoing reasoning is equally applicable to homicide in a 
duel, when viewed on principles of justice alone. Every death in a duel is 
the result of a sort of consent given. The party allows himself to be shot at. 
It is his own voluntary act that places him in peril. He furthermore gives 
his consent for the sake of the privilege of himself perpetrating a crime at the 
same moment. The offender is not punished for the sake of the party injured, 
for he himself, by his own illegal act, forfeits all just claim to protection from 
the law. The punishment is, or should be, awarded mainly as a matter of 
public policy, and with a view to prevent an evil practice calculated to de- 
prive society of some of its highest ornaments and most valuable members. 
Public policy might justify death as the penalty, if the practice could thereby 
be broken up. We are all willing enough, as legislators, to award that, or 
any other penalty as matter of policy, and censure jurors for not enforcing 
the law. But it is doubted, whether there is one of us who, as a juror, would 
not shrink in the application to a particular case, of so severe a punishment 
as death. In the abstract no punishment seems too severe ; but when you 
come actually to apply hanging to a respectable member of society for an 
offence that has no turpitude in it, you revolt the sense of justice of all society, 
and with one acclaim the rigor of the law is denounced, and the acquittal of 
the accused demanded. There has never been an instance in England, or 
this country, of capital conviction for death inflicted in a duel, fairly fought. 
As Livingston says, " this proves how inefficient are all laws when opposed 
to public opinion." This is peculiarly the case in a country like ours, where 
public opinion constitutes nearly the whole force of the Government. It is 
that vigilant, cheap, unarmed police, which gives prompt and efficient aid to 
Government in rigidly punishing all crimes of turpitude, but which, with a 
nicer sense of justice than the law itself has heretofore displayed, paralyzes 
the Government in any effort to enforce an obviously too harsh, or an unjust 
penalty. By awarding death as the penalty for killing in a duel, the law has 
for centuries been blindly defeating its own purpose. It has not, by its threat, 
deterred offenders; and instead of punishing the offence, has actually accorded 
it the most perfect immunity from all punishment. This cannot be wise, 
there is nothing in it at all savoring of a sound policy. 

The English Commissioners say : " By abolishing capital punishment in 
cases of duelling, not only will a just objection be removed from the law for 
punishing the offence with death, without due discrimination between that 
offence and cases of murder, but a great stigma on our jurisprudence will be 
taken away, — that of having a very serious injury to society unropressed and 
unpunished, by reason of affixing a punishment for it, which is found im- 
practicable to be put in execution." 

When the offence is reduced to extenuated homicide, it can, in the discre- 
tion of a jury, be punished by confinement in the penitentiary, or by tine 

69 



546 CRIMINAL CODE. 

and imprisonment. Such punishment -we can well rely upon a jury to inflict. 
If it is inflicted, even in its mildest form, it must be more efficient in sup- 
pressing the practice than a penalty of death held up in mere terrorem, and 
which everybody knows is never to be enforced. But it is believed, that the 
penalty of even fine and imprisonment will prove most eflicient. A single 
case of only twelve months' imprisonment, and a few thousand dollars fine, 
will do more to suppress the practice than the mere idle threat of the law has 
accomplished in centuries. 

D. 

This definition of murder is taken from the English code. It is the same as 
that given in the India code, and substantially the same as that given in the 
Livingston code. 

The following reasons given by Livingston, for this mode of defining murder 
and rejecting the present definition, are cited with approbation, and adopted 
by the English Commissioners. They appear to be all-sufficient and conclusive. 

" If a clear idea has been given, in the preceding parts, of this chapter of 
the other descriptions of homicide, there can be no difficulty in forming one 
of murder that is not liable to error. An act of homicide occurs. Did the cir- 
cumstances justify it? Did they excuse it? Does it come within any of the 
descriptions of negligent homicide? Is it manslaughter? If either of these 
questions be answered in the affirmative, it cannot be murder. The advantage 
of this mode of description, over that of a simple definition is evident ; for 
should any words in the definition be liable to misconstruction, an act properly 
coming within the lower degree of that offence might be brought within the 
definition of the higher. The act of taking human life is the same in all. 
The attention should, therefore, if we mean to avoid error, be drawn to all the 
circumstances that would bring the act into a lower degree, before we inflict 
punishment for the highest. The form of the rule imposes this necessary obli- 
gation ; for there is no description of murder, other than that it is a homicide, 
which is not one of those before described. Now, take the English description 
of the crime, and see if the same result is produced. Coke's description of 
the crime is the one most generally sanctioned by decisions and commentators. 
It is this: 'When a person of sound memory and discretion unlawfully kill- 
eth any reasonable creature, in being, and under the king's peace, with malice 
aforethought, either express, or implied.' There is scarcely a word in this 
definition that, to a conscientious juror, might not afi'ord matter for serious 
doubt. The perpetrator must be of sound memory and discretion. What a 
scope does this give for equivocation? What a field does it open for inquiry? 
What has soundness of memory to do with the act? Be the faculty ever so 
imperfect, how does it affect the guilt ? And as to discretion, if a sound dis- 
cretion were necessary to constitute guilt, no one could be guilty ; for surely 
he commits the highest indiscretion, who takes away the life of another, and 
exposes his own to the consequences of detection and punishment. The kill- 
ing must also be unlaivful. Here we have one of the features of the descrip- 
tion contained in the code, but without the facility which it affords for deter- 
mining, by a few preceding pages, whether the killing be lawful. The person 



CRIMINAL CODE. 647 

killed must be a reasonable creature, neither a new-born infant, nor an idiot, 
nor a madman, nor one suffering in the delirium of fever, or stupificd by 
opium, or liquor, comes within this part of the description according; to the 
plain meaning of the words. Again, who is the king's peace ? What is malice 
aforethought? Is there any malice that is afterthought? What is express 
malice ? When shall it be implied ? I am certainly aware that most of tlicse 
terms have been expounded by commentators, and illustrated by decisions, 
and that a recourse to the sources of information would teach us what con- 
struction the best lawyers and judges would put upon them, but still the evil 
recurs. There is no source to which we can look for the absolute certainty on 
which the conscience of a juror ought to rest, who is sworn to decide, and the 
definition given to him as the text of the law. He has a right to put the con- 
struction which his understanding adopts upon the words ; and there are cases 
in which the expositors themselves are not agreed, more especially as to what 
constitutes malice, express or implied, — the great pivot on which the definition 
turns, and one of which it is so difficult to form a definite idea, that I have 
purposely excluded it from the description of this offence in the code." 

This exterminating sort of criticism is not alone applicable to the definition 
of murder, but the learned jurist might, with equal success, have applied it to 
other common law definitions of crime. Nothing could more strikingh- illus- 
trate the necessity for a revision and codification of tlie comnmn law against 
crime, or the fatuity of blind adherence to a system of jurisprudence, which 
has to trust to its mere antiquity as its best defence. It also illustrates the 
truth of the remark of the English Commissioners, that " alterations are essen- 
tial, in order to render the criminal law of the country suitable to the present 
state of society, and conformable to the enlightened principles of jurisprudence. 

E. 

There is an unsettled dispute among codifiers, whether this offence is prop- 
erly classed as murder. The weight of authority is against it, but the weight 
of argument seems to be the other way. It has been thus arranged in defer- 
ence to authority, it not being deemed very material what is its classification, 
if the crime be appropriately punished. But there being doubt, whether it 
should be treated as murder, and there being no express legislative sanction 
for punishing any sort of perjury with death, it was deemed best to leave the 
discretion to the jury between death and long confinement in the penitentiary. 

Mr. Macaulay says, in his late history: "The old law of England, \\\\\A\ 
had been suffered to become obsolete, treated the false witness, who had caused 
death by means of perjury, as a murderer. This was wise and righteous; 
for such a witness is, in truth, the worst of murderers. To the guilt of shed- 
ding innocent blood, he has added the guilt of vitdating the moat solemn en- 
gagement into which man can enter with his fellow-men, and of making insti- 
tutions, to which the public look with respect and confidence, instruments of 
frightful Avrong and objects of general distrust. The jniin produced by ordi- 
nary assassination bears no proportion to the pain produced by assassination 
of which courts of justice are made agents. The mere extinction of life is a 
very small part of what makes an execution horrible. The prolonged mental 



548 CRIMINAL CODE. 

agony of the sufferer, the shame and misery of all connected with him, the 
stain abiding even to the third and fourth generations, are things far more 
dreadful than death itself. In general, it may be safely affirmed, that the 
father of a family would rather be bereaved of all his children by accident, or 
by disease, than lose one of them by the hands of the hangman." 

F. 

Murder is thus divided into two degrees by the Massachusetts code: 
"Murder committed with deliberately premeditated malice aforethought; or 
in the commission of, or attempt to commit any crime punishable with death ; 
or committed with extreme atrocity or cruelty, is murder in the first degree. 

" Murder not appearing to be in the first degree is, that in the second." 

The Virginia statute says : " Murder by poison, lying in wait, imprison- 
ment, starving, deliberate and premeditated killing, or in the commission or 
attempt to commit arson, rape, robbery, or burglary, is murder in the first 
degree. All other murder is murder in the second degree." 

The statutes of several of the States contain similar provisions. The ap- 
parent objections to both these modes of division are, that by including " every 
murder committed with deliberately premeditated malice aforethought," or 
" murder by deliberate and premeditated killing," no division of murder is 
actually made into two degrees, but every murder must fall into the first de- 
gree. For deliberation, premeditation, and malice aforethought, are neces- 
sary to every murder, and a culpable voluntary homicide not accompanied by 
those indicia is merely manslaughter. Whilst, therefore, concurring fully in 
the policy of making two degrees of the crime, the first punishable by death, 
and the second by long confinement in the penitentiary, it seemed necessary 
to make the dividing line more distinct and explicit. The general terms used 
in the two specimens quoted, sufficiently indicate the legislative will, that 
there shall be a discrimination made between different kinds of murder ; but 
the terms used are so indefinite as to leave too much to the discretion of the 
jury in attaining the supposed legislative will. The division made in the 
Livingston code is liable to the same objection, but not to the same extent. 

It has been attempted in the text, by the third section of Article V., to 
obviate this objection by specifying, or more distinctly designating the cases 
to be treated as murder in the first degree. The specification and designation 
are so large, that they may render the effort obnoxious to the criticism, that 
few or no cases are left to fall within the second degree of murder. If this 
criticism be just, then the fault will be that the text leaves the law as it now 
is, without material change. But it is believed that the criticism is not just, 
and that there are many cases which will come within the second degree. Be 
this, however, as it may, all must agree that so important a matter should not 
be left to the loose discretion of the jury; and when the attempt is made by 
reducing the specification or designation to exclude cases from the first de- 
gree, it will be found very difficult to make any such reduction in accordance 
with public sentiment and justice. 

Even though the number of cases be small that will properly come within 
the second degree, still it is deemed very important that the distinction should 



CRIMINAL CODE, 549 

be made. The act is framed throughout with a view to removing all necessity 
for the very bad habit, so prevalent in our State, of the jury making the law 
for the case, instead of administering the law as it is. This practice has grown 
up principally from the fact, that the law is what it should not be. It may 
be got rid of, by ceasing longer to persevere in the idle effort Ut make public 
sentiment bend to the law, and adopting the more rational plan of accom- 
modating the law to public sentiment. Past experience has abundantly 
proved that there are many cases which juries will not punish with death, 
though they come strictly within the definition of murder. They might 
punish those cases with confinement in the penitentiary, if permitted to do 
80. Besides, the boundary line between murder and manslaugliter is so badly 
defined, and it is so impracticable to define itfcith precision, that the lowest 
penalty for the one ofi"ence ought to coincide with the highest ponalty for the 
other. It might sometimes enable a jury to agi'ee upon a verdict. 

G. 

The penalty for this offence is purposely so arranged as to give the jury a 
wide discretion. The great failure in the administration of our criminal law 
has been in the impunity given to this offence, and the kindred one of murder 
done to avenge personal insults and injuries. As there are various cases of 
murder which the jury would punish by confinement in the penitentiary, when 
they would not punish with death, so there are many cases of manslaughter 
for which they would fine and imprison the offender, but would not send him 
to the penitentiary. The latter mode of punishment carries with it a disgrace, 
not merely to the culprit, but to his relations also. Many a young man has 
been exempted from punishment, purely on the ground of the degradation 
which his confinement in the penitentiary would inflict on his parents, or other 
kindred ; whereas, if he could have been fined and imprisoned, which does 
not carry with it degradation to others, he would have been so punished. The 
efficacy of penalties in preventing crime depends much more upon the certainty 
of their infliction, than upon their severity ; especially when their enforce- 
ment depends upon the lax discretion of a jury. According to every principle 
of policy, some punishment is better than none. But imprisonment in a com- 
mon county jail is very far from no punishment to this class of offenders. 
Close imprisonment, it is believed, will be very efficacious. Since the Legis- 
lature has succeeded in nearly abolishing duelling, this class of men have 
undertaken to establish another sort of code, which authorizes each man to 
determine for himself what provocations he shall avenge by the death of a 
neighbor. The want of appropriate penalties, such as jurors will enforce, has 
brought this new code as much into vogue as duelling formerly was, and it is 
practised under with the same impunity. The most efficacious penalty against 
duelling ever devised, was the oath of office. So it is believed that fine and 
imprisonment will prove equally efficacious, or the most efficacious remedy 
against open-day-street murders and manslaughters. It is, at least, well wor- 
thy of a few years experimental test of its efficacy. We can suffer nothing 
by the experiment. This part of the law cannot be more inefficient than it 
69 



550 CRIMINAL CODE. 

now is. A man can, for the slightest provocation, shoot another down in the 
street with more certain impunity tlian he can steal from him a single dollar. 
For the latter offence he is very certain to be punished ; for the former he is 
equally certain to receive no punishment at all. 

But the great, unanswerable argument in favor of the change of penalty, is, 
that there is intrinsically such wide degrees of actual culpability in man- 
slaughter, that justice itself requires there should be an equally wide range 
for the discretion in fixing the penalty for each offence. That this discretion 
will be sometimes abused is very probable, but that is an unavoidable evil of 
the trial by jury, to which we must cheerfully sujjmit for the sake of its com- 
pensating benefits. But we can console ourselves with the reflection that it 
cannot be worse abused than j^now is, when the jury is allowed no discre- 
tion, and are directed to punish every manslaughter by confinement in the 
penitentiary. 

The preamble to our act of 1798 truly says: "Experience in all ages and 
countries hath shown that cruel and sanguinary laws defeat their own pur- 
pose, by engaging the benevolence of mankind to withhold prosecutions, to 
smother testimony, or to listen to it with bias ; and by producing, in many 
instances, a total dispensation and impunity ; when, if the punishment were 
only proportioned to the injury, men would feel it their inclination, as well as 
their duty, to see the laws observed." The proposed act has been framed 
with the view of better carrying out the spirit of this preamble, and testing, 
in a better manner than has heretofore been done, whether certain mild pun- 
ishment is not more efficacious than the uncertain enforcement of severe 
penalties. 

H. 

The Act of 1801, M. and B. 1268, punishes the mother alone for this offence, 
by confinement in the penitentiary from two to seven years, and contains no 
penalty against those aiding her in the concealment. The penalty is entirely 
too severe, and such as no jury could be induced to inflict, unless accompanied 
with well-grounded belief that the child was killed after birth. In that case 
the penalty is inappropriate, as the offence would have to be punished as mur- 
der. The law, in any aspect, is most harsh and rigorous. It is a reversal of 
the usual benevolent policy, which prefers that any number of guilty persons 
should escape, rather than that one innocent person should be unjustly pun- 
ished. It confounds all rational probabilities, and rashly presumes that in 
all, or a large majority of cases, the child is killed after birth, where its birth 
is attempted to be concealed by a secret burial. Or for an inadequate motive 
of policy, it confounds guilt and innocence, and recklessly punishes the inno- 
cent, in order that the guilty may not escape. There is no moral turpitude 
in endeavoring to conceal a woman's shame by the secret burial of an ubor- 
tion, or even of a child that dies immediately after birth. The impulse that 
leads to such concealment is natural and blameless. The thing usually occurs 
among the most ignorant of the ignorant ; among those who know least of the 
law. To convert it into a crime of so grave a character as to deserve seven 
years confinement in the penitentiary, seems to be a gross perversion of all 



CRIMINAL CODE. 551 

principles of justice. The mother is little likely, from her if^noranoo, to know 
anything of the existence of a law which, under so harsli a penalty, cinpi-Is 
her uselessly to publish her shame. To infer cliiid-munlcr from the mere act 
of concealment, is against all fair and rational prubability. Possibly ninety- 
nine out of every hundred women would destroy the foetus before birth if they 
could ; but if the child is born alive, and the mother hears its cry, there is 
scarcely one in a hundred who would either kill or suffer it to be killed. If 
this conjecture even approximates the truth, if it be true even as to a consid- 
erable minority of such mothers, how cruel the law which so scverelv and 
recklessly punishes so many innocent persons for the sake of reaching those 
that are guilty. 

The deliveries of such mothers are those in which there is the least rational 
ground for presuming that the child was born alive. The previous mental dis- 
tress and effort at concealment are calculated to injure the foetus, or produce 
premature birth, and the want of the usual aid to cause the death of the child 
in giving it birth. The act of 1801 goes on the presumption that the child is 
born alive and killed after birth, merely because it is a bastard ; or at least, 
that in a very large majority of cases such are the facts, where the child is 
secretly buried. Without such presumption, there would not be even the sem- 
blance of justice or policy in favor of the law. The presumption being ob- 
viously irrational, the law must necessarily be unjust. 

It is an insufficient answer, to say that the penalty can be avoided bv not 
concealing the birth. Such an answer miglit be worth something if we were 
perfectly sure that the ignorant mother knew there was any such law. Every 
one is necessarily required to know what the law is. But tliis is a requirement 
very contrary to the actual fact. It is probable that a majority of the well- 
informed people of Kentucky are not aware of the existence of any such law. 
Hence, the great danger of perpetrating legal iniquity, in visiting even trivial 
faults with very heavy penalties, and the absolute certainty of doing so in 
cases like this, where tliei-e is no fault, no moral turpitude whatever, but tlie 
act is in itself perfectly blameless. 

If the act should be treated as an offence at all, the penalty prescribed in 
the text gives the jury ample power to punish it as severely as it can properly 
deserve. It has the merit, also, of being a penalty that may be enforced, 
whereas no Kentucky jury would ever enforce the other. 



THE END. 



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